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PLEASE READ THESE LICENSE AND SUPPORT TERMS (“TERMS”) CAREFULLY BEFORE USING THEPRODUCT(S) OFFERED BY ASPECT.DEV, INC. (“ASPECT”). BY MUTUALLY EXECUTING ONE OR MOREORDER FORMS WITH ASPECT WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU(“LICENSEE”) AGREE TO BE BOUND BY THESE TERMS (THE “TERMS”, AND TOGETHER WITH ALLORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANYONLINE ORDER FORM WHICH YOU SUBMIT VIA ASPECT’S STANDARD ONLINE PROCESS AND WHICHIS ACCEPTED BY ASPECT SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF YOU ARE ENTERINGINTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOUARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THISAGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
Subject to the terms hereof (including all restrictions and limitations set forthon the Order Form), payment of all fees, Aspect grants Licensee a personal, nonsublicensable, nonexclusive, right to usethe licensed product(s) identified in the Order Form in object code form only (“Product”) on authorized machine(s) locatedat authorized Licensee site(s) and only in accordance with Aspect’s applicable user documentation and price list, solelyduring the applicable License Term (as defined below). Except for one copy solely for back-up purposes, Licensee maypossess only the number of copies of any Product as has been expressly authorized by Aspect); Aspect retains ownershipof all copies and Licensee will maintain the copyright notice and any other notices that appear on the Product on anycopies and any media. Licensee will not (and will not allow any third party to) (i) reverse engineer or attempt to discoverany source code or underlying ideas or algorithms of any Product (except to the extent that applicable law prohibits reverseengineering restrictions), (ii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwiseuse or allow others to use for the benefit of any third party, any Product (except as expressly and specifically authorizedby Aspect), (iii) possess or use any Product, or allow the transfer, transmission, export, or re-export of any Product orportion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department,U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency, (iv) disclose to any thirdparty any benchmarking or comparative study involving any Product or (v) modify any Product. Prior to disposing of anymedia or apparatus containing any part of the Product, Licensee shall completely destroy any Product contained therein.Licensee may provide feedback, suggestions, or comments to Aspect regarding the Product (“Feedback”). Licenseehereby grants Aspect a nonexclusive, perpetual, worldwide, royalty-free, fully paid-up, sublicensable, transferable licenseto use, make available and otherwise exploit the Feedback for any purpose. Licensee acknowledges that Product may bedistributed alongside or contain or use certain third party software and/or open source software, (“Additional Software”).Additional Software is (in addition to the terms and conditions of this Agreement), subject to and governed by (andLicensee agrees to) the respective licenses for the Additional Software that are provided therewith.
During the Order Form Term, Aspect will use reasonable commercial efforts toprovide the support and maintenance services for that Product as and to the extent described in Aspect’s then applicablestandard Support and Maintenance Terms (the current version of which can be found at www.aspect.build/support-and-maintenance-terms-and-conditions) (“Support Services”).
Licensee shall pay Aspect fees as set forth on the Order Form (or, if no fees are specified onthe Order Form, Aspect’s then current standard license/subscription fees for any authorized copies or uses of Product orsuch other fees as have been expressly agreed to by Aspect) (“Fees”). Unless otherwise specified on the Order Form, allFees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars withinthirty (30) days from date of invoice. . In addition, without limiting Aspect’s remedies, if Licensee makes or uses copies,or has users/uses, that are not authorized hereunder, it will so report to Aspect and will pay additional license andmaintenance and support fees equal to Aspect’s then current standard fees for the license and maintenance and support ofsuch extra copies and users/uses (from time to time upon request, Aspect will be entitled to audit or have audited allsystems and records relevant to assure compliance with the foregoing; any audit showing noncompliance will be atLicensee’s expense). All payments shall be made in the currency of, and within the borders of the United States. Anypayments more than thirty (30) days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximumrate allowed by law. In addition, Licensee will pay all taxes, shipping, duties, withholdings, backup withholding and thelike; when Aspect has the legal obligation to pay or collect such taxes, the appropriate amount shall paid by Licenseedirectly to Aspect. Licensee will reimburse Aspect for all reasonable travel and other related expenses incurred by Aspectin its performance hereunder; provided, however, that such expenses shall have been pre-approved by Licensee.
Unless otherwise set forth in the Order Form, the “License Term” shall begin as ofthe effective date set forth on the Order Form, and unless earlier terminated as set forth herein, (x) shall continue for theinitial term specified on the Order Form (the “Initial Term”), and (y) following the Initial Term, shall automatically renewfor additional successive periods of equal duration to the Initial Term (each, a “Renewal Term”) unless either party notifiesthe other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the InitialTerm or then-current Renewal Term, as applicable. All licenses will terminate thirty days (ten in the case of non-paymentand immediately in the case of a breach of Section 1) after notice of any breach by Licensee remaining uncured at the endof such notice period. A license will also terminate upon the expiration of any applicable license period specified for theapplicable Product on the Order Form. Upon any termination, Licensee shall immediately cease all use of all affectedProducts and return or destroy all copies of all affected Products and all portions thereof and so certify to Aspect. Exceptas otherwise expressly provided herein, the terms hereof shall survive any termination. Termination is not an exclusiveremedy and all other remedies will be available whether or not termination occurs.
Aspect shall hold Licensee harmless from liability to third parties resulting from infringementby a Product of any United States patent issued sixty (60) days or more before delivery of such Product or any copyrightor misappropriation of any trade secret, provided Aspect is promptly notified of any and all threats, claims and proceedingsrelated thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement;Aspect will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respectto a Product or portions or components thereof (i) not created by Aspect, (ii) made in whole or in part in accordance toLicensee specifications, (iii) that are modified after delivery by Aspect, (iv) combined with other products, processes ormaterials where the alleged infringement relates to such combination, (v) where Licensee continues allegedly infringingactivity after being notified thereof or after being informed of modifications that would have avoided the allegedinfringement, or (vi) where Licensee’s use of such Product is not strictly in accordance herewith. Licensee will indemnifyAspect from all damages, costs, settlements, attorneys' fees and expenses related to (x) any claim of infringement ormisappropriation excluded from Aspect's indemnity obligation by the preceding sentence, or (y) any other claim inconnection with the Product or the use or distribution thereof.
Aspect warrants for a period of thirty (30) days from delivery of a Productthat such Product will materially conform to Aspect’s then current user documentation for such Product. This warrantycovers only problems reported to Aspect during the warranty period. ANY LIABILITY OF ASPECT WITH RESPECTTO A PRODUCT OR THE PERFORMANCE THEREOF UNDER ANY WARRANTY, NEGLIGENCE, STRICTLIABILITY OR OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPLACEMENT OR, IFREPLACEMENT IS INADEQUATE AS A REMEDY OR, IN ASPECT’S OPINION, IMPRACTICAL, TO REFUNDOF AN APPROPRIATE PORTION THE REMAINING UNAMORTIZED LICENSE FEE PAID BY LICENSEE.EXCEPT FOR THE FOREGOING WARRANTY BY ASPECT, ALL PRODUCTS ARE PROVIDED “AS IS”WITHOUT WARRANTY OF ANY KIND FROM ANYONE, INCLUDING WITHOUT LIMITATION, ANYWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ORNONINFRINGEMENT. FURTHER, ASPECT DOES NOT WARRANT RESULTS OF USE OR THAT THEPRODUCTS ARE BUG FREE OR THAT THE PRODUCT’S USE WILL BE UNINTERRUPTED.
NOTWITHSTANDING ANYTHING ELSE HEREIN OR OTHERWISE, ANDEXCEPT FOR (A) BODILY INJURY, (B) LICENSEE’S BREACH OF SECTION 1, AND (C) THE PARTIES’INDEMNIFICATION OBLIGATIONS, NEITHER PARTY NOR ANY OF ITS LICENSORS SHALL BE LIABLE OROBLIGATED WITH RESPECT TO THE SUBJECT MATTER HEREOF OR UNDER ANY CONTRACT,NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS INEXCESS IN THE AGGREGATE OF THE FEES PAID (OR PAYABLE) TO ASPECT HEREUNDER WITH RESPECTTO THE APPLICABLE PRODUCT DURING THE SIX MONTH PERIOD PRIOR TO THE CAUSE OF ACTION OR(II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS;(III) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSSOR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. THEPRODUCT IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN HAZARDOUSENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE WHERE THE FAILURE OF THE PRODUCTCOULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SIGNIFICANT PHYSICAL ORENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). USE OF THE PRODUCT IN HIGH RISKACTIVITIES IS NOT AUTHORIZED. THE PARTIES AGREE THAT THIS SECTION 7 REPRESENTS AREASONABLE ALLOCATION OF RISK AND THAT ASPECT WOULD NOT PROCEED IN THE ABSENCE OFSUCH ALLOCATION.
Aspect may use Licensee’s name and logo in client listings. Aspect may issue a press releaseannouncing the relationship contemplated hereby, subject to Licensee’s approval which shall not be unreasonablywithheld or delayed.
Neither this arrangement nor the licenses granted hereunder are assignable or transferable (andany attempt to do so shall be void); provided that either party may assign and transfer the foregoing to a successor tosubstantially all of Aspect’s Product business or assets or Licensee’s business for which Products are licensed (but if theauthorized copies or users are not limited, the assignee is not licensed to expand use beyond Licensee’s bona fide preassignment use plus reasonably expected growth assuming the assignment and related transactions had not occurred). Theprovisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval,authorization, agreement or consent required or permitted hereunder shall be in writing; notices shall be sent to the addressthe applicable party has or may provide by written notice or, if there is no such address, the most recent address the partygiving notice can locate using reasonable efforts. No failure or delay in exercising any right hereunder will operate as awaiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provisionshall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited oreliminated to the minimum extent necessary so that this arrangement shall otherwise remain in full force and effect andenforceable. This agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of theState of California and the United States without regard to conflicts of laws provisions thereof, and without regard to theUnited Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act.This is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels allprevious written and oral agreements and communications relating to the subject matter hereof and, except as otherwiseset forth below, any waivers or amendments shall be effective only if made in writing; however, any pre-printed orstandard terms of any purchase order, confirmation, or similar form, even if signed by the parties after the effectivenesshereof, shall have no force or effect. In the event of any conflict or inconsistency between these Terms and the OrderForm, the Order Form shall control. Aspect reserves the right to update and/or modify these Terms at any time; providedthat (i) Aspect will provide Licensee with reasonable notice (e.g., via e-mail) of any updates or modifications, and (ii) anyupdates or modifications will not be effective with respect to Licensee until the start of the next Renewal Term. Thesubstantially prevailing party in any action to enforce this agreement will be entitled to recover its attorney’s fees andcosts in connection with such action. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFARsection 252.227-7014(a)(5) or otherwise, all Products and accompanying documentation provided by Aspect are“commercial items,” “commercial computer software” and/or “commercial computer software documentation.”Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release,performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by theseterms and shall be prohibited except to the extent expressly permitted by these terms.
