Pitney Bowes File-Based Processing Software License Agreement
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE USING THE SOFTWARE. THIS AGREEMENT STATES THE TERMS AND CONDITIONS UPON WHICH PITNEY BOWES INC. (“LICENSOR”) OFFERS TO LICENSE THE FILE-BASED PROCESSING SOFTWARE. BEFORE USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU ALSO REPRESENT THAT YOU HAVE THE LEGAL CAPACITY TO ENTER INTO A BINDING CONTRACT AND ARE AUTHORIZED TO BIND THE USER OF THE SOFTWARE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE AND IT IS YOUR RESPONSIBILITY TO EXIT THIS PROGRAM, (A) UNINSTALL AND DELETE THE SOFTWARE FROM YOUR COMPUTER OR (B) RETURN THE COMPUTER TO LICENSOR IF THE COMPUTER WAS PROVIDED BY LICENSOR EXLUSIVELY FOR USE WITH THE SOFTWARE. IN ADDITION, IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY RETURN THE SOFTWARE TO LICENSOR, WITHIN THIRTY (30) DAYS OF THE DATE OF PURCHASE, FOR A FULL REFUND.
1.1 “Documentation” shall mean any documentation provided by Licensor to Licensee in connection with the use of the Licensed Software, including user manuals and operating instructions. The Documentation may be modified from time-to-time to incorporate any Updates.
1.2 “Installation Site” shall mean a specific installation site designated in the applicable invoice for the Licensed Software.
1.3 “Licensed Software” shall mean the file-based processing software programs consisting of a series of computer instructions or statements and any related licensed materials such as data base files, operating instructions and user manuals.
1.4 “Licensee” shall have the meaning set forth in Section 2.1 herein.
1.5 “Licensor” shall have the meaning set forth in the notice above.
1.6 “Maintenance Services” shall have the meaning set forth in Section 3.0 herein.
2.0 LICENSE TERMS AND RESTRICTIONS.
2.1 Subject to payment of all applicable license fees and other amounts due relating to the Licensed Software, Licensor grants to you (“Licensee”) and Licensee accepts, pursuant to the terms and conditions set forth in this Agreement, a perpetual, non-exclusive, non-transferable license to: (i) use the Licensed Software only at the Installation Site; (ii) process Licensee’s own files and data; and (iii) utilize operating instructions and user manuals in support of the use of the Licensed Software. The grant of rights to the Licensed Software is not a sale of the Licensed Software. Licensor reserves all rights not expressly granted by this Agreement.
2.2 Licensee may make a reasonable number of copies of the Licensed Software and Documentation for backup purposes and disaster-recovery purposes. Licensee is authorized to transfer any license to, and use the Licensed Software on, a backup machine at the Installation Site, or at another installation site owned and operated by or on behalf of Licensee only if the Installation Site is temporarily inoperable or unusable and Licensor is immediately notified of such use in writing, but in no event shall such temporary period exceed ninety (90) days. Licensee must reproduce all copyright, trademark, trade secret and other proprietary notices in any disaster-recovery copies of Licensed Software and any copies Licensee may make of any Documentation.
2.3 Licensee will not:
2.3.1 use the Licensed Software in the operation of a time-sharing or service bureau arrangement or as an application service provider;
2.3.2 sublicense, rent, lease, lend, host, transfer or assign the Licensed Software without the prior written consent of Licensor;
2.3.3 make adaptations or derivative works of the Licensed Software;
2.3.4 reverse engineer, decompile or disassemble the Licensed Software or any portion thereof;
2.3.5 make copies of the Licensed Software or Documentation except as otherwise authorized in Section 2.2 hereof;
2.3.6 disclose or show the Licensed Software or Documentation, or any part thereof, to anyone for any purpose other than in order to enable Licensee to use the Licensed Software in accordance with the terms of this Agreement;
2.3.7 attempt to unlock or bypass any initialization system, encryption methods or copy protection devices in the Licensed Software;
2.3.8 modify, alter or change the Licensed Software;
2.3.9 alter, remove or obscure any patent, trademark or copyright notice in the Licensed Software or Documentation; or
2.3.10 use the Licensed Software in a manner that violates any laws or regulations applicable to Licensee.
2.4 This Agreement shall apply to Updates in the same manner as in respect of the Licensed Software, unless Licensor provides other terms along with the Updates.
Licensor may, from time to time, revise or update the Licensed Software including user documentation. Licensor will provide you with limited technical support for the Licensed Software in accordance with the standard SLA provided with your Equipment. For purposes of this Agreement, “Equipment” will mean the equipment listed in the executed Order, excluding any postage meter and standalone software. For purposes of this Agreement, “Order” will mean the executed order between the applicable Pitney Bowes company and you for the equipment covered under the order.
Licensor shall have the right to terminate this Agreement if Licensee commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after it has been notified in writing of such breach, or if such breach is incapable of being cured. Upon termination, Licensee shall return the Licensed Software and Documentation and delete and/or destroy all copies thereof. In addition, Licensee agrees to pay all costs, including reasonable attorneys’ fees, incurred by Licensor as a result of any such breach, including costs of collection.
5.0 PROPRIETARY RIGHTS AND CONFIDENTIALITY.
5.1 The Licensed Software and Documentation and all copies thereof are proprietary to Licensor, and rights and title thereto remains in Licensor. All applicable rights to any intellectual property in the Licensed Software and Documentation and any modifications, adaptations or derivative works thereof are and shall remain in Licensor. Licensee agrees to secure and protect each module, software product, documentation and copies thereof in a manner consistent with the maintenance of Licensor’s rights therein and to take appropriate action by instruction or agreement with its employees or consultants who are permitted access to each program, software or documentation product to satisfy its obligations hereunder. All copies made by Licensee of the Licensed Software and Documentation are the property of Licensor. Violation of any provision of this paragraph shall be the basis for immediate termination of this Agreement by Licensor. Licensee, in recognition of the fact that the Licensed Software contains highly confidential and proprietary Licensor information and that Licensor will be irreparably damaged if the security of the Licensed Software is breached, agrees that Licensor is entitled to injunctive relief, without the posting of any bond, and damages as may be determined by a court of competent jurisdiction.
5.2 Survival Beyond Termination. The terms and provisions contained in this Section 5.0 shall survive the termination of this Agreement or any license hereunder. Upon any termination of a license hereunder, Licensee shall return the Licensed Software and Documentation and delete all copies thereof from its libraries. At Licensor’s request, Licensee shall certify in writing, in a form acceptable to Licensor, that it has complied with its obligations under this Section 5.0.
6.0 LIMITED WARRANTY AND LIABILITY.
6.1 Limited Warranty.
6.1.1 Licensor warrants that for a period of thirty (30) days from delivery of the Licensed Software, such Licensed Software, when properly used, will conform to all substantial operational functions as described in the Documentation if used in the operating environment specified therein. Notwithstanding the foregoing, as enhanced versions of the Licensed Software are released, Licensor’s obligation to correct problems in the Licensed Software shall only apply to the most recent version of the Licensed Software.
6.1.2 Licensor further warrants its rights to enter into this Agreement and/or the right to grant this license.
6.1.3 LICENSOR MAKES NO FURTHER WARRANTY OR CONDITION AND DISCLAIMS ANY AND ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND OR NATURE WHETHER WRITTEN, VERBAL, EXPRESS, IMPLIED, COLLATERAL OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF RESULTS, PERFORMANCE, MERCHANTABILITY, MERCHANTABLE QUALITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
6.2 Limited Liability. Licensor’s entire liability and Licensee’s exclusive remedy shall be as follows:
6.2.1 In situations involving performance or nonperformance of the Licensed Software furnished hereunder, Licensee’s sole remedy is replacement or correction of the Licensed Software by Licensor so that it will substantially perform the functions as described in the Documentation. In the event Licensor is unable to correct the deficiency within a reasonable period of time, Licensor’s liability shall be limited to a refund of the license fee paid by Licensee to Licensor for the Licensed Software, provided the claim of nonperformance is made by Licensee and received by Licensor within the thirty (30) day warranty period as set forth in Section 6.1.1 hereof.
6.2.2 IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM AGAINST LICENSEE BY ANY OTHER PARTY.
6.2.3 In no event will Licensor be liable for the corruption of any data of Licensee when the use of the Licensed Software is not within the permitted uses under this Agreement.
6.2.4 Subject to the foregoing exclusions, in no event shall Licensor's liability under this Agreement or with respect to the Licensed Software, whether to Licensee or to third parties, exceed the amount of the license fee actually paid to Licensor for the Licensed Software.
6.3 Modification to Software. In the event Licensee changes or modifies the Licensed Software in any manner, all warranties given hereunder will not apply in respect of such changed or modified Licensed Software and Licensor will be released of any obligation or liability in respect of such changed or modified Licensed Software.
7.0 PAYMENT OBLIGATIONS.
Licensee will pay to Licensor the license, training and any other fees set out in an invoice. Unless such invoice expressly states otherwise, (i) all fees identified therein and any applicable taxes are due and payable within thirty (30) days from the date of Licensor’s invoice, and (ii) Licensee will pay a late charge of one and a half percent (1.5%) per month or the highest amount permitted by law, whichever is less, on any fees not paid by the due date. Licensee will pay all federal, state, provincial and local sales, use, property, excise, and other taxes imposed on or with respect to this Agreement or an invoice for the products and\or services provided hereunder. If any sales, use, excise or other taxes (except for taxes based on Licensor’s net income) are assessed against or required to be collected in connection with this Agreement or an invoice, Licensor will itemize such taxes the invoice.
Licensee shall indemnify, defend and hold Licensor, its affiliates, and Licensor’s and its affiliates’ officers, directors and employees harmless from all losses, damages, and reasonable costs and expenses to the extent they arise out of a claim by a third party arising out of or related to use of the Licensed Software by Licensee or any other person in a manner not authorized by this Agreement or in any manner for which the Licensed Software was not designed or where the Licensed Software has been modified by Licensee or for Licensee by a third party.
9.1 Assignment. This Agreement shall be binding upon and inure to the benefit of Licensor’s successors and assigns. Neither this Agreement nor any rights or obligations hereunder shall be assigned or otherwise transferred by Licensee without the prior written consent of Licensor.
9.2 Statement of Agreement. Licensee agrees that this Agreement is the complete and exclusive statement of the agreement between the parties which supersedes all proposals, concurrent or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. All amendments to this Agreement shall be in writing and signed by both parties. Except as may be otherwise provided in this Agreement, no terms contained in any related purchase order or invoice shall be made a part of this Agreement.
9.3 Force Majeure. Either party hereto shall be excused from any obligation under this Agreement to the extent and for so long as non-fulfilment of such obligation is due to fire, flood, storm, earthquake, epidemic, strike, war, riot, terrorism, explosion or compliance with any law, order or decree of any court or government agency; provided, however, that either party's non- fulfilment of its obligation does not exceed ninety (90) days in duration. Notwithstanding the provisions of this Section, neither party hereto shall be relieved of any obligation to make any payment provided in this Agreement at the time such payment is due.
9.4 Captions and Headings. All captions, headings and titles contained in this Agreement are for convenience and reference purposes only and shall not be deemed a part of this Agreement.
9.5 Partial Invalidity. If any part of this Agreement, or the application thereof, is for any reason held or otherwise found to be unenforceable, it shall be deemed severable and the validity of the remainder of this Agreement or the application of such provisions to other circumstances shall not be affected thereby.
9.6 Governing Law and Jurisdiction. This Agreement shall be governed in all respects by the laws of the Province of Ontario without regard to conflict of laws principles. Both parties submit to jurisdiction of the courts sitting in Toronto, Ontario, and further agree that any cause of action arising under this Agreement shall be exclusively brought in such courts. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
9.7 Export Laws. Licensee hereby represents and warrants that, unless it has obtained all required authorizations and taken all other actions necessary to comply with applicable laws in the United States and Canada, it will not export or otherwise disclose, directly or indirectly, any technology or software received from Licensor nor allow the direct product thereof to be shipped or to be disclosed, either directly or indirectly, to any destination or person prohibited by applicable laws in the United States or Canada.
9.8 Notices. Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed sufficiently given if delivered by hand to the intended recipient or mailed by certified mail, return receipt requested, to: in the case of Licensee, to the address to which Licensor sends invoices to Licensee; and in the case of Licensor, to Pitney Bowes Inc., 27 Waterview Drive (MSC 28-00), Shelton, CT 06848-8000, Attention: DI900/950 Sebring Product Manager, with a copy to Pitney Bowes Inc., 3001 Summer Street, Stamford, CT 06926-0700, Attn: Chief Legal and Compliance Officer. Any such notice shall be deemed delivered on the day hand delivered at the specified address or on the date shown on the return receipt.
9.9 Non-waiver. A waiver of any breach or default under this Agreement shall not constitute a waiver of any other or subsequent breach or default. Failure or delay by either party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition.
9.10 U.S. Government Restricted Rights. If Licensee is an agency of the United States Government, use of the Licensed Software by the Government constitutes acknowledgment of Licensor’s proprietary rights in the Licensed Software, and such Licensed Software shall be:
9.10.1 deemed "commercial computer software" or "commercial computer software documentation" and the Government’s rights with respect to such Licensed Software and Documentation are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable, or their successors; and
9.10.2 subject to “RESTRICTED RIGHTS,” as described in FAR52.227-14 and/or DFAR252.227-7013 et seq., as applicable. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in these regulations or their successors.
9.11 English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.