Last Updated April 1,
2010
IMPORTANT - READ CAREFULLY.
This ARAS
INNOVATOR® Agreement (“Agreement”) is a legal agreement among you (either an
individual or a single entity, collectively “you” or “Licensee”), Aras
Corporation (“Aras”), and partners of Aras who have been certified as such by
Aras (an “Aras Certified Partner”) for the Aras Innovator® software product and
all certified software applications for use therewith (the “Solutions”)
provided by Aras that run on the Aras Innovator® application framework
(collectively, “Licensed Software”), the documentation (the “Documentation”), the
Subscription Services (as defined in subsection B.1 below), and
Professional Services (as defined in subsection C.1 below). By
installing, copying, or otherwise using the Licensed Software or by purchasing
the Services, you agree to be bound by the terms of this Agreement, including
the warranty disclaimers, limitations of liability and termination provisions
below. If you do not agree to the terms of this Agreement, do not install or
use the Licensed Software. Should
you have any questions concerning this Agreement, or if you desire to contact
A. LICENSE FOR SOFTWARE AND DOCUMENTATION
A.1 GRANT OF LICENSE.
Licensee is
hereby granted the following non-exclusive, non-transferable, and non-sublicensable
rights with respect to Licensed Software and Documentation:
(a) to
install the Licensed Software on computer servers owned or leased by Licensee
for use solely by Licensee’s employees and the employees of Licensee’s suppliers and customers
(“Authorized Users”);
(b) to
make an unlimited number of copies of the Licensed Software for backup and
disaster recovery purposes, provided Licensee shall reproduce all confidentiality and
proprietary rights notices on all copies of the Licensed Software; and
(c) to make an unlimited
number of copies of the Documentation and distribute those copies to Authorized Users, provided Licensee shall reproduce all confidentiality and
proprietary rights notices on all copies of the Documentation.
A.2 RIGHTS TO
Except for the rights expressly granted above, all right, title and
interest to the Licensed Software and the Documentation and copies thereof
remains exclusively with
A.3 LIMITED WarrantY
and limitation of liability.
If Licensee does not purchase a Support Subscription (as defined in
Section B) from
(a) To
the maximum extent permitted by applicable law, except as stated in this
Agreement, the Licensed Software as provided by Aras is provided and LICENSED
"AS IS" WITHOUT WARRANTY OF ANY KIND,
EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTY
OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR
PURPOSE.
(b) If
any portion of the Licensed Software is held by a court of competent jurisdiction to infringe any third party intellectual property
rights, then the license granted under this Agreement shall immediately
terminate and Licensee must stop using the Licensed Software.
A.4 TRANSMISSION OF INFORMATION.
From time to time during the term of this
Agreement, information about your license key, the version of the Licensed
Software running in your environment and the language packs you have installed
may be transmitted by the installed Licensed Software to Aras. This information allows
B. SUBSCRIPTION
B.1
SUBSCRIPTION SERVICES.
If Licensee purchases (a “Subscription”) for Services (as defined below) from either
“Licensed Software” shall be deemed to include (i) any widgets or certified
software applications developed by an Aras Certified Partner for use with the
Licensed Software; and (ii) new versions, upgrades and updates to the Licensed
Software that are generally released by
The Subscription Provider shall provide the
following services (collectively, the “Services”):
(a) Correction
of verifiable and reproducible errors in the Licensed Software that are
reported to the Subscription Provider by Licensee;
(b) Tracking
and reporting of Licensee issues;
(c) Telephone
and on-line hot-line support;
(d) Access
to training materials;
(e) Access
to any regularly scheduled training classes, subject to availability;
(f) Access
to download any new version of the Licensed Software generally released by Aras
to its subscribers, which may include Microsoft certified versions of Licensed Software,
bug fixes, patches, or maintenance releases;
(g) Access
to download and use Solutions and software tools that are available to
subscribers only;
(h) Upgrade
services to upgrade the Licensee’s installation of Licensed Software, when
requested by the Licensee, to a new version of the Licensed Software (“Upgrade
Services”); and
(i) Additional services announced from time to time by Subscription
Provider.
Upgrade Services
include all the labor to perform an upgrade of the Licensee’s database, including any
customizations made by Licensee. Upgrade Services will be performed at the
facilities of the Subscription Provider.
Upgrade Services do not include travel expenses, any on-site performance
of such services, or upgrade of third-party commercial add-on software.
Licensee is responsible for the purchase and installation of any required
hardware and Microsoft software updates, validation testing of the upgraded
database, and end-user training.
With respect to the correction of a possible error in the Licensed
Software reported to the Subscription Provider by Licensee, the Subscription
Provider shall first verify that such an error is present and, if present, work
in a diligent manner toward development of a correction. Subscription Provider shall have no
obligation whatsoever to correct errors in any release of the Licensed Software
other than the most recent release, provided, however, the Subscription
Provider shall continue to support the prior release for a reasonable period of
time.
Services outside the scope of the obligations set forth above are
excluded, including, but not limited to, substantial work involved in
correction of problems identified by Licensee which are found not to be errors or which result from (i) use or modification of the Licensed Software
in breach of the terms of this Agreement; (ii) faults or errors or malfunctions
in any hardware or software not licensed by Aras or an Aras Certified Partner;
or (iii) failure by Licensee to implement recommendations or solutions or
work-arounds to errors in the Licensed Software as previously advised by Aras
or an Aras Certified Partner.
B.2 LIMITED
WARRANTY, INDEMNITY AND LIMITATION OF LIABILITY.
Provided that
Licensee has subscribed for and is current in payments for a Subscription, the
following warranty, indemnity and limitation of liability provisions shall
apply:
The Subscription
Provider represents and warrants that it has all rights, power and authority
necessary to enter into and to fully perform this Agreement. The Subscription
Provider shall indemnify and hold harmless Licensee and its affiliates and
customers and their respective directors, officers, employees and agents and
the successors and assigns of each of the foregoing from and against any and
all claims, damages, liabilities, cost and expenses, including legal expenses
and reasonable attorneys fees, arising out of any claim that the Licensed
Software, when used in accordance with the Documentation and subject to the
terms of this Agreement, infringes upon a third-party’s intellectual property
rights. The foregoing
In claiming any
indemnification hereunder, Licensee shall promptly provide the Subscription
Provider with written notice of any claim which Licensee believes falls within
the scope of the foregoing paragraph.
Licensee may, at its own expense, assist in the defense if it chooses;
provided that the Subscription Provider shall control such defense and all
negotiations relative to the settlement of any such claim; and further provided
that the Subscription Provider shall not settle any claim without the Licensee’s
prior written consent, which consent shall not be unreasonably withheld.
IN NO EVENT SHALL
ARAS OR AN ARAS CERTIFIED PARTNER BE LIABLE FOR ANY LOST OR ANTICIPATED
PROFITS, OR ANY INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, RELIANCE OR
CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER IT WAS ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN NO EVENT SHALL ARAS’
OR AN ARAS CERTIFIED PARTNER’S LIABILITY UNDER THIS AGREEMENT EXCEED FEES FOR A
SUBSCRIPTION PAID TO the SUBSCRIPTION PROVIDER BY LICENSEE DURING THE TWELVE
(12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO A CLAIM FOR SUCH
DAMAGES.
B.3 PRICING, TERM AND TERMINATION.
(a) The pricing and term of a Subscription shall
be set forth in a purchase order (the “
(b) The term of a Subscription shall commence
upon the date specified in the PO and continue for the period specified in the
(c) A Subscription shall be renewed at the
Subscription Provider’s then current list price for additional one (1) year
periods (a “Renewal Term”) unless the Licensee provides ninety (90) days
advance written notice prior to the end of the Initial Term or the current
Renewal Term of its intent to terminate the Subscription at the expiration of
the current term. At the end of the
Initial Term and each subsequent Renewal Term, the Subscription Provider and
Licensee will review the then current and planned number of Authorized Users
and the Subscription Provider will adjust the pricing for the Renewal Term
based upon the results of such review (a “True-Up”).
(d) Licensee may lock-in pricing for a Subscription
and extend the time between True-ups by specifying in its PO a term, with
respect to the Initial Term, of greater than two (2) years and, with respect to
the Renewal Term, of greater than one (1) year.
(e) The Subscription Provider and Licensee may,
at each of their option and without further notice, immediately terminate a Subscription
if the other party breaches its obligations under this Agreement and, where
such breach is curable, such breach remains uncured for thirty (30) days
following written notice of the breach.
Upon such termination, (i) Licensee shall promptly pay any unpaid fee
for the Subscription to the Subscription Provider; (ii) the Subscription
Provider shall have no obligation to continue to provide the Services; and
(iii) if Licensee terminates a Subscription based on a breach of contract by the
Subscription Provider, the Subscription Provider shall pay Licensee a pro-rated
refund of the fee paid for the current term of the Subscription.
(f) In the event a
Licensee does not renew a Subscription, Licensee may continue to use versions of the Licensed Software made openly
available by
C. PROFESSIONAL
SERVICES
C.1
SCOPE OF AGREEMENT.
Licensee, from time
to time, may engage obtain certain professional services (“Professional Services”)
from either Aras or an Aras Certified Partner (the “Service Provider”) as set
forth in a separate statement of work (“SOW”) executed by Licensee and the
Service Provider. Professional Services
may include, but are not limited to, installation, training, process consulting,
development and/or implementation services (the “Work Product”). Except as otherwise specifically provided in
an SOW, each SOW shall be governed by the terms of this Agreement. As a condition to the Service Provider’s obligations
hereunder, Licensee must at all times: (a) in good faith cooperate with the
Service Provider and provide access to such information, facilities, and
equipment as may be reasonably required in order to provide the Professional Services,
including, but not limited to, providing Licensee data, security access,
information, and software interfaces to Licensee’s business applications; (b)
provide such personnel assistance, as may be reasonably requested from time to
time; and (c) carry out in a timely manner all other Licensee responsibilities
set forth in the SOW. In the event of
any delay in Licensee’s performance of any of the obligations set forth in (a),
(b) or (c), or any other delays caused by Licensee, the Service Provider, may
adjust its obligations and milestones set forth in the SOW as reasonably
necessary to account for such delays.
C.2
SERVICES.
The Professional Services
to be performed by the Service Provider under this Agreement, the rate of
compensation to be paid by Licensee for such Professional Services, and any
other terms applicable to such Professional Services shall be described an SOW. The Service Provider agrees to perform the Professional
Services described in each SOW in accordance with the terms of this Agreement
and the terms set out in the applicable SOW.
C.3
TERM AND TERMINATION.
Obligations of the parties with respect to
Professional Services shall commence on the date indicated on a signed SOW and
shall continue until terminated as provided in this subsection C.3. Professional Services may be terminated as
follows:
(a) If Licensee fails to make any payment due for
Professional Services, and fails to cure such breach within ten (10) days after
receiving written notice, then the Service Provider may immediately and without
further notice cease providing Professional Services and declare all sums for
Professional Services due, and to become due for Professional Services,
immediately payable;
(b) Except as set forth in subsection C.3(a) above,
a party may terminate the Professional Services (i) in the event that the other
party breaches any material obligations under this Agreement and SOW and such
breach is not cured within thirty (30) days after the receipt of written notice
of the alleged breach.
C.4 RIGHTS
TO INTELLECTUAL PROPERTY.
Except as specified
in a separate agreement with Licensee, the Service Provider shall retain any
and all rights to ideas, inventions, developments and/or designs conceived or
developed by it in connection with its performance of the Professional Services. Performance of the Professional Services
pursuant to this Agreement shall not create any rights in Licensee with respect
to the Licensed Software or any patents, trademarks, trade secrets and/or other
intellectual property rights of
C.5 LIMITED
WARRANTY AND LIMITATION OF LIABILITY.
Provided that
Licensee has purchased Professional Services and is current in its payment for Professional
Services, the following limited warranty and limitation of liability shall
apply solely with respect to Professional Services:
The Service
Provider warrants that the Work Product will substantially conform to the
specifications set forth in the SOW (the “Specifications”). The sole responsibility of the Service
Provider shall be to correct or replace that portion of the Work Product which
fails to conform to the Specifications; provided, however, that Licensee has
reported in writing any defect or error within sixty (60) days of delivery (the
“Review Period”) of the Work Product. The
Service Provider shall have no liability if (i) Licensee modifies the Work Product
without prior written consent; (ii) Licensee
fails to give written notice of the non-conformance of the Work Product to the
Specifications within the Review Period; or (iii) the failure of the Work
Product to conform to the Specifications is caused in whole or part by persons
other than the Service Provider, or by products, equipment or computer programs
not licensed by the Service Provider or Aras, if not the Service Provider. THE EXPRESS WARRANTY SET FORTH IN THIS SUBSECTION
C.5 IS THE ONLY WARRANTY GIVEN BY THE SERVICE PROVIDER WITH RESPECT TO PROFESSIONAL
SERVICES OR THE WORK PRODUCT; THE SERVICE PROVIDER MAKES NO OTHER WARRANTIES,
EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND SPECIFICALLY
DISCLAIMS THE WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND
FITNESS FOR ANY PARTICULAR PURPOSE. THE
SERVICE PROVIDER’S EXPRESS WARRANTY SHALL NOT BE ENLARGED, DIMINISHED OR
AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF, THE SERVICE
PROVIDER’S RENDERING OF TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH
ITS PERFORMANCE OF PROFESSIONAL SERVICES.
IN NO EVENT SHALL THE
SERVICE PROVIDER’S LIABILITY FOR PROFESSIONAL SERVICES OR THE WORK PRODUCT
EXCEED THE FEES ACTUALLY PAID BY LICENSEE FOR THE WORK PRODUCT IN THE TWELVE
(12) MONTH PERIOD IMMEDIATELY PRECEDING NON-CONFORMANCE TO SPECIFICATIONS
GIVING RISE TO SUCH CLAIM.
C.6 INFRINGEMENT.
During the term of
this Agreement, if any portion of the Work Product is held by a court of
competent jurisdiction to infringe any third party intellectual property
rights, then the Service Provider will, at its expense and option: (i) obtain
the right for Licensee to continue to use the Work Product consistent with this
Agreement; (ii) modify the Work Product so that it is non-infringing; or (iii)
replace the infringing component of the Work Product with a non-infringing
component. The foregoing states the
Service Provider’s sole liability, and Licensee’s exclusive remedy, in the
event that any portion of the Work Product is held to infringe any third-party
intellectual property right.
D. GENERAL
TERMS AND CONDITIONS
(a) IN NO EVENT SHALL ARAS OR ANY ARAS CERTIFIED
PARTNER BE LIABLE FOR ANY LOST OR ANTICIPATED PROFITS, OR ANY INCIDENTAL,
PUNITIVE, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, REGARDLESS OF
WHETHER IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except as set forth in subsections B.2
(provided you have purchased a Subscription and remain current in your payments
for the Subscription) and C.5 (provided you have purchased Professional
Services), the entire liability of
(b) Either party may terminate this Agreement
in the event that the other party admits in writing its inability to pay its
debts generally as they become due, makes a general assignment for the benefit
of creditors, institutes proceedings to be adjudicated a voluntary bankrupt, or
consents to the filing of a petition of bankruptcy against it, is adjudicated
by a court of competent jurisdiction as being bankrupt or insolvent, seeks
reorganization under any bankruptcy act, or consents to the filing of a
petition seeking such reorganization, or ceases to do business itself or
through a successor.
(c) Licensee may not reverse engineer,
decompile, or disassemble the Licensed Software, except and only to the extent
that such activity is expressly permitted by applicable law notwithstanding
this limitation.
(d) Without prejudice to any other rights,
(e) If Licensee sues anyone over patents that it
thinks may apply to the Licensed Software (including a cross-claim or counterclaim
in a lawsuit), Licensee’s license to the Licensed Software shall end
automatically.
(f) Licensee, Aras and Aras Certified Partners
agree to maintain the confidentiality of any proprietary information received
by the other party including non-public technical and business information
("
(g) Subsections A.2, A.3, B.2, C.4, C.5 and
Section D shall survive any expiration or termination of this Agreement.
(h) Licensee represents and warrants that
Licensee shall not, directly or indirectly, export, re-export or transship
products, technology or software in violation of any applicable U.S. export
control laws and regulations or any other applicable export control laws of any
country having jurisdiction over the parties or the transaction contemplated by
this Agreement.
(i) The Licensed Software and Documentation
are deemed to be “commercial computer software” and “commercial computer
software documentation,” respectively, pursuant to DFAR Section 227.7202
and FAR Section 12.212, as applicable.
The rights of the United States Government to use, modify, reproduce,
release, perform, display or disclose the Licensed Software and Documentation
shall be governed by this Agreement.
(j) In the event of any inconsistency between
the terms of this Agreement and the terms of any
(k) This Agreement shall be governed by and
construed in accordance with the laws of the
(l) If any provision in this Agreement is
invalid or unenforceable, that provision shall be construed, limited, modified
or, if necessary, severed, to the extent necessary, to eliminate its invalidity
or unenforceability, and the other provisions of this Agreement shall remain in
full force and effect.
(m) This Agreement and the use of the Licensed Software
and Documentation provided hereunder are not assignable without the prior
written consent of
(n) If by reason of labor disputes, strikes,
lockouts, riots, war, inability to obtain labor or materials, earthquake, fire
or other action of the elements, accidents, governmental restrictions,
appropriation or other causes beyond the reasonable control of a party hereto,
either party is unable to perform in whole or in part its obligations as set
forth in this Agreement, then such party shall be relieved of those obligations
to the extent it is so unable to perform and such inability to perform shall
not make such party liable to the other party.
Neither party shall be liable for any loss, injury, delay or damages
suffered or incurred by the other party due to the above causes.
(o) This Agreement sets forth the entire
understanding and agreement among Licensee,
(p) All
fees and any other charges incurred hereunder are exclusive of all federal,
state, municipal, and other governmental excise, sales, use, customs, value
added, and other taxes, fees or duties now in force or enacted in the
future. If