1. LICENSE; TERM; USE OF PLATFORM.

1.1 License. COMPANY grants to Licensee a one (1) year non-exclusive, non-transferrable (except as otherwise permitted herein), revocable, limited right to use the Platform. The Licensee acknowledges that this Agreement grants a license for its own use and Licensee shall not have the right to produce or use the programs in the Platform for others. The Licensee shall not sell, assign, or pledge its license or any other provisions or rights under this Agreement without COMPANY’s prior written consent.  Any attempt to reverse engineer or use the Platform for others, or to copy or otherwise make available the data, programs, code, documentation or any other part of the Platform for use by others, or to sell, assign or pledge its license shall terminate the license.

1.2 This Agreement automatically renews unless either party gives the other written notice of cancelation at least 120 days prior to the expiration of the then current term.

1.3 Entity Restriction. Only the Licensee and its legal affiliates may use or receive the benefit of the Platform.

1.4 Licensee Restrictions. Licensee shall not:

1.4.1 Produce or use the programs in the Platform for others

1.4.2 Sell, assign, or pledge its license or any other provisions or rights under this Agreement

1.4.3 Copy, reproduce or otherwise create derivative works or adaptations of the Platform;

1.4.4 Alter, modify or make changes to the Platform, either independently of the Company or in conjunction with a third party

1.4.5 Reverse engineer the Platform;

1.4.6 Use the Platform in a Platform provider capacity, distribute or resell the Platform to third parties for a fee, or in either case, as part of another Platform or product.

1.4.7 Remove or modify any proprietary marking or restrictive legends in the Platform;

1.4.8 Use any automatic device or program or manual process to monitor, frame, copy or reproduce the Platform; or

1.4.9 Access the Platform to build a competitive product or Platform, or copy any feature, function or graphics of the Platform; OR

1.4.10 Copy or otherwise make available any component of the Platform, including but not limited to, the programs or documentation, for use by others

 

  1. ACCESS TO THE PLATFORM

2.1 COMPANY shall coordinate the initial installation and testing of the Products on Licensee’s equipment equipped with Internet access. Licensee shall prepare the installation site in accordance with COMPANY’s reasonable directions.

2.2 COMPANY will provide remote setup and training as specified the order form.

2.3 Software maintenance shall include routine software modifications and assistance in handling questions relating to software uses and functions. Maintenance is included with the annual License Fee of the software. Maintenance fees may be increased by COMPANY with written notice to purchaser at least 45 days prior to the expiration of the current term.

2.4 Platform will be deemed accepted by purchaser on the tenth day following Licensee having access to the Platform.

2.5 In order for Licensee to access the Platform, Licensee shall install and maintain a dedicated broadband Internet connection for the duration of this Agreement. Licensee shall pay the cost of the installation, maintenance, and use of such connection. COMPANY is not responsible for maintaining those connections.

 

  1. HARDWARE TITLE.

3.1 Title to any hardware purchased in connection with this Agreement shall pass to Licensee upon delivery, and Licensee hereby grants COMPANY a purchase money security interest in all of the hardware delivered and proceeds thereof until the purchase price has been paid in full. Licensee shall execute any instruments or documents necessary to perfect the secured interest, and a copy of this Agreement may be filed by COMPANY at any time after signature by Licensee as a financing statement. Licensee shall bear the risk of loss for the hardware upon delivery.

 

  1. TECHNICAL SUPPORT

4.1 Subject to the terms of this Agreement, the annual License Fee shall enable Licensee to have access to Software Support for an initial twelve (12) month period and for each renewal year upon payment of the annual License Fee, which, as set forth on the first page of the Agreement in above, is a required fee to use the Platform.

4.2 A License and software support shall be provided for a period of twelve (12) months and shall renew for successive twelve (12) month periods for so long as Licensee continues to use the Platform and remits the required annual License Fee.

4.3 Each renewal of Software License Fee shall afford (a) a one (1) year extension of the initial warranty period granted in Section 8 of this Agreement for so long as Licensee continues to use the software and remits the required fees due to COMPANY; (b) the provision of certain updates, enhancements and improvements to the Platform which COMPANY, in its sole discretion, makes available to Licensee (COMPANY does not promise to make available to Licensee every enhancement, update or improvement to the Platform); and (c) the provision of operational assistance (”Software Support”) not to include programming or data conversion.

4.4 COMPANY shall have adequate technical personnel available at a minmum from 8:00 a.m. to 5:00 p.m. Eastern Standard Time, Monday through Friday, excluding major holidays, to provide assistance to Licensee’s personnel in the operation of the Platform.

4.5 Dates and times by which COMPANY is required to perform under this License shall be postponed automatically to the extent that COMPANY is prevented from meeting them by causes beyond its reasonable control.

4.6 COMPANY shall only perform Software Support services on a properly updated Platform. Failure of Licensee to update the Platform according to transmittal notices of COMPANY or making unapproved changes in the Platform or failing to properly equip the computer system may, at the sole option of COMPANY, terminate COMPANY’s obligations to provide Software Support under this Agreement. Such termination shall not relieve Licensee of its fee obligations to COMPANY.

 

  1. FEES AND PAYMENT TERMS.

5.1 License Fees. The License granted by this Agreement and Licensee’s right to use the Platform shall require the payment of fees as identified on page 1 of this Agreement. COMPANY shall have the right to change its rates or terms of payment. Any increase in the number of initally licensed users may result in an adjustment to the License fee.

5.2 Professional Services Fees. The Licensee shall pay COMPANY at its then current hourly billing rates for any other professional services not provided as Software Support under this Agreement. COMPANY’s fees for professional services shall include all reasonable expenses associated with travel, accommodation and meals.

5.3 Payment Terms. Licensee shall remit all fees due to COMPANY within ten (10) days of receipt of an invoice.

5.4 Late Payment Terms. Any amounts not paid by the relevant due date will incur a charge equal to the lesser of (i) 1.5% per month or (ii) the maximum amount permitted by law. The charge will accrue from the due date on a daily basis until payment of all outstanding amounts is made in full.

 

  1. PROPRIETARY RIGHTS AND INTELLECTUAL PROPERTY

6.1 The technology provided by COMPANY as part of the Platform is proprietary to COMPANY, and all rights, title and interests in the Platform, including all associated intellectual property rights, remain with COMPANY. No grant of rights or license to any COMPANY intellectual property may be assumed or implied by this Agreement. COMPANY expressly reserves all rights not granted herein.

6.2 Other than open source and/or publicly available off the shelf components, all of the computer software programs and modules, updates, enhancements, improvements, and related documentation and materials are valuable trade secrets of COMPANY and all right, title and interest in and to the Platform, including any intellectual property, whether or not patentable or susceptible to copyright, trademark or trade dress protection, to computer programs, updates, enhancements, or improvements and any trade secrets contained therein, whether or not developed for Licensee or derived from modifying COMPANY’s proprietary software in contravention of this Agreement, are and shall remain the sole and exclusive property of COMPANY. Licensee has no claim of ownership or any interest in the Platform other than its nonexclusive right to use the Platform, and Licensee shall execute any documentation necessary to assign any and all rights, title and/or interest, including but not limited to patent, trade secret, trade mark, trade dress and/or copyright, to COMPANY. Licensee acknowledges that COMPANY has the sole and exclusive right to distribute and license the Platform to any third party.

6.3 All programs and documentation or other information relating to the Platform are and continue to be the confidential and proprietary information of COMPANY and all documentation, files, media and programs shall be so designated. Licensee shall take every reasonable precaution not to reveal and to protect COMPANY’s proprietary property to include, without limitation, limiting access to the Platform and associated programs and documentation or other information relating to the Platform to Licensee’s employees who need to have access and are subject to obligations of confidentiality at least as stringent as those imposed on Licensee under their Agreement, and preventing access by any third party, including, but not limited to, any third party software vendor, program developer and/or independent contractor engaged by or on behalf of Licensee for any purpose. Licensee shall be liable for any acts in contravention to the terms of this Agreement by any of Licensee’s employees to whom access is granted to the Platform or associated documentation.

6.4 Disclosure by Licensee. In the event Licensee should become aware of any occasion of third party access to COMPANY’s Platform, Licensee shall notify COMPANY of same within ten (10) days of such knowledge, providing COMPANY with information as to the nature and scope of any such third party access, including information regarding all dates of access, areas accessed, any and all modifications made to COMPANY’s Platform, and the identity of any such third party.

6.5 Right of Audit. During the term of this Agreement and for a period up to one (1) year following termination of this Agreement, COMPANY may request that Licensee conduct an internal audit of all COMPANY products, including comparing the number of products in use to the number of effective licenses issued to Licensee. By requesting an audit, COMPANY does not waive its rights to enforce this Agreement or to protect its intellectual property by any other means permitted by law. In addition, following termination of this Agreement, Licensee shall permit COMPANY to independently verify the removal of the Platform from Licensee’s system(s).

 

  1. MUTUAL CONFIDENTIALITY.

7.1 Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). COMPANY Confidential Information includes the Platform, and Confidential Information of each party includes the terms of this Agreement and all orders, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by either party.

7.2 Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use or access to the Confidential Information of the Disclosing Party. Receiving Party may disclose Confidential Information if required by law, but will attempt to provide Disclosing Party advance notice.

7.3 Protection of Confidential Information. The Receiving Party must use the same degree of care that it uses to protect its Confidential Information (in no event less than reasonable care) to not disclose or use any Confidential Information of the Disclosing Party for any purpose (other than within the scope of this Agreement or for the benefit of the Disclosing Party). The Receiving Party must limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less restrictive than those in this Agreement. Licensee shall, in no event, make any disclosure of COMPANY’s Confidential Information in contravention of Section 6.3.

 

  1. WARRANTY, REMEDY AND LIMITATION OF DAMAGES.

8.1 COMPANY warrants that, during Licensee’s payments of required fees owed to COMPANY under this Agreement: (a) each program module of the Platform will operate without significant error for a period of one (1) year from the date upon which that module is installed on Licensee’s hardware; and (b) each enhancement, update or modification provided as Software Support will operate without significant error for a period of one (1) year from the date the enhancement, update or modification is delivered to Licensee. In the event that a program module or an enhancement, update or modification to the Platform has a materially significant error which manifests itself in operation during the warranty period, COMPANY’s sole obligation under this warranty shall be to remedy such error consistent with regular business practices at no additional charge to Licensee. The one (1) year warranty shall be extended as set forth in Section 5.1, upon Licensee’s payment for annual renewal of Software Support under this Agreement.

8.2 If COMPANY sublicenses to Licensee software which is not proprietary to COMPANY, Licensee will if required, execute a separate third-party User License Agreement which shall govern all rights, obligations and remedies of the Licensee concerning such software. COMPANY makes no other separate warranties with regard to non-proprietary software to Licensee, except that COMPANY warrants that its installation of such software shall be done in a reasonable manner. To the extent that any failure of the non-proprietary software to meet the specifications for such software is due to improper installation by COMPANY, COMPANY shall correct any errors in installation made by COMPANY.  Any liability of COMPANY with respect to non-proprietary software shall be limited to this remedy.

8.3 THE ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY COMPANY. COMPANY MAKES AND LICENSEE RECEIVES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDED ARE ALL WARRANTIES FOR MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY SHALL HAVE NO LIABILITY FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LAW, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES IN ADVANCE OR IF THE LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. Under no circumstances shall company’s liablity to Licensee exceed the amount of the license and software fees paid to COMPANY by licensee under the then current term of this Agreement.

8.4 THE STATED EXPRESS WARRANTIES ARE IN LIEU OF ANY AND ALL LIABILITIES OR OBLIGATIONS OF COMPANY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT, DELIVERY, INSTALLATION, SUPPORT OR SERVICING, USE OR PERFORMANCE OF THE LICENSED SOFTWARE, INCLUDING DOCUMENTATION, ANY SUPPORT AND MAINTENANCE, AND ANY OTHER SERVICES. LICENSEE AGREES THAT THE WARRANTIES SET FORTH HEREIN SHALL BE VOIDED IN THE EVENT THAT THE LICENSEE MAKES ANY MODIFICATION OR CHANGE TO ANY COMPONENT OF THE PLATFORM OR DEVIATES FROM THE OPERATING INSTRUCTIONS WITHOUT THE EXPRESS WRITTEN CONSENT OF COMPANY. LICENSEE AGREES THAT ANY LIABILITY OF COMPANY ARISING OUT OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF RECOVERY AT LAW OR EQUITY SHALL NOT EXCEED ANY AMOUNT PAID BY LICENSEE TO COMPANY FOR THE LICENSE UNDER THIS AGREEMENT AND ANY SUBLICENSED SOFTWARE PROVIDED TO LICENSEE UNDER THE THEN CURRENT TERM OF THIS AGREEMENT.

 

  1. DEFENSE AND INDEMNITY

9.1 COMPANY shall defend or, at its option, settle, any claim, action or proceeding brought against Licensee alleging that the Platform infringes any United States patent, copyright or trade secret, and shall indemnify and defend Licensee against all damages and costs finally awarded against Licensee in any such action or proceeding which arises or results from any such claim. Liability of COMPANY under this Section shall apply only to the extent that Licensee (a) once Licensee shall have received actual knowledge of such claim, promptly notifies COMPANY in writing of the claim, action or proceeding, (b) gives COMPANY full authority, information and assistance to defend such claim, action or proceeding, and (c) gives COMPANY sole control of the defense and settlement of such claim, action or proceeding and all negotiations relating thereto. Subject to the preceding conditions (a) through (c), Licensee, at Licensee’s expense, shall have the right to participate in the defense or settlement of such claim. COMPANY shall have no liability to Licensee for any costs incurred or settlement entered into without the prior written consent of COMPANY, which consent shall not be unreasonably withheld. COMPANY shall have no liability to Licensee hereunder with respect to any claim based upon (a) the combination of the Platofrm with other products or services not furnished by COMPANY (b) any third party (including open source) software incorporated in or provided with the Platform; or (c) any addition or modification to the Platform by any person or entity other than COMPANY.

9.2 If, as a result of a claim of infringement of any patent, copyright, license or other proprietary right, Licensee or COMPANY is enjoined from using the Platform, or if COMPANY believes that the Platform is likely to become subject of a claim of infringement, COMPANY at its option and expense, shall procure the right for Licensee to continue to use the Platform component(s), replace the Platform component(s), modify same so as to make it non-infringing, or discontinue the license granted herein on one month’s written notice and refund to Licensee the remaining portion of the annual License Fees paid for the balance of the year in which notice is given.

9.3 If Licensee’s Platform is based on Microsoft Dynamics NAV software, COMPANY makes no warranties or other representations concerning any right, title or ownership of the Microsoft Dynamics NAV software and any and all claims Licensee may have concerning its use shall not be asserted against COMPANY but directly against Microsoft Business Solutions or some party other than COMPANY.

9.4 The defense and indemnity obligations by COMPANY herein do not extend to any claim related to, or arising out of, or based on: (a) any violation of any use restrictions, confidentiality or proprietary rights provisions in this Agreement; (b) the use of COMPANY’S technology in an unauthorized manner or any modifications thereof by Licensee; or (c) any products or services developed in conformance with Licensee-provided specifications, designs or instructions. Under no circumstances shall COMPANY be liable for any consequential, exemplary, or incidental damages for any claims of infringement. Section 8 constitutes the COMPANY’s entire liability and the Licensee’s sole and exclusive remedy for intellectual property rights claims arising out of or related to the Services.

9.5 SECTION 8.4 SETS FORTH THE ENTIRE LIABILITY OF COMPANY, AND THE EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, TRADEMARK OR TRADE SECRET INFRINGEMENT BY THE PLATFORM, ANY PART THEREOF OR THE USE THEREOF, AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND INDEMNITIES WITH RESPECT THERETO.

9.6 Licensee shall indemnify and hold harmless COMPANY from and against any and all claims, demands, liabilities, losses, costs and expenses (including reasonable attorneys’ fees and any fees of consulting professionals) of any kind whatsoever levied against or incurred by COMPANY, its officers, directors, employees or agents, arising directly or indirectly out of (i) conduct of Licensee, (ii) Licensee’s failure to perform any of its material obligations under this Agreement or (iii) the provision of products or services by Licensee in the course of the business of Licensee.

 

  1. TERM; TERMINATION AND SUSPENSION OF PATFORM.

10.1 This Agreement shall be effective on the date of the last signature hereto.

10.2 COMPANY shall have the right to terminate the license granted and end any of its remaining duties or services to be provided, including any Software Support:

10.2.1 Licensee fails to remit the required annual License Fee within ten (10) days of the date on which such payment would be due;

10.2.2 Upon ten (10) days written notice in the event that Licensee, its officers or employees violate any provision of this Agreement, including but not limited to, confidentiality, access, payment; or

10.2.3 In the event Licensee: (1) terminates or suspends its business; (2) becomes subject to any bankruptcy or insolvency proceedings under federal or state statute or (3) becomes insolvent or subject to direct control by a trustee, receiver or similar authority.

10.3 Any party may terminate this Agreement by providing notice to the other party at least 120 days prior to the expiration of the then current term.

10.4 Upon termination, all rights of the Licensee to use the Platform shall cease immediately, Licensee shall return all COMPANY materials. Termination shall not relieve Licensee from its obligations under this Agreement, including without limitation, payment of any sums due hereunder and confidentiality. Termination of the license shall be in addition to and not in lieu of any other remedies including equitable remedies available to COMPANY. Upon any termination as provided Section 10 by COMPANY, Licensee must pay any unpaid fees and fees covering the remainder of the term of all orders.

10.5 The rights and obligations contained in sections 1, 5-7, and 11-14 shall survive termination or expiration of this Agreement.

 

  1. EQUITABLE RELIEF. Licensee acknowledges that any breach by it of any confidentiality provision or use restrictions in this Agreement will cause irreparable damage to COMPANY or its third party licensors and that remedy at law will be inadequate. Therefore, in addition to any remedies, COMPANY or its licensors will be entitled to seek injunctive relief for any actual or threatened breach of any confidentiality or use restriction.

  1. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with the laws of the Commonwealthof Pennsylvania and any action or proceeding based on this Agreement or arising out of its performance shall be brought in a federal or state court of competent jurisdiction in the Commonwealthof Pennsylvania and no other jurisdiction. COMPANY shall be entitled to recover its reasonable attorney’s fees and costs from Licensee in connection with litigation to enforce Licensee’s obligations under Sections 2, 5-7 of this Agreement, including but not limited to the collection of any past due amounts due under this Agreement.

  1. SEVERABILITY. In case any provision of this Agreement shall be invalid, illegal, or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.

  2. REGULATORY ACCOMODATION. If any federal, state, provincial or departmental regulatory body interprets an existing or promulgates a new rule, law or regulation that prohibits or otherwise materially adversely affects the exercise of rights licensed under this Agreement, the parties shall use commercially reasonable efforts to take actions and/or amend this Agreement to promptly and adequately address and account for such rules, laws or regulations. If such actions do not adequately address and account for such rules, laws or regulations and/or the parties do not mutually agree on terms and conditions of an amendment to this Agreement that addresses and accounts for such rules, laws or regulations, then COMPANY may terminate this Agreement upon written notice to Licensee.

  1. TARIFFS AND TAXES. Any and all tariffs and any applicable European, national, federal, State/Provincial and/or local tax or fees which may be levied or imposed by reason of the transactions contemplated by this Agreement shall be the sole obligation of, and will be paid by, Licensee. Should Licensee: (a) fail to pay any such tariff, tax or fee when due to the appropriate governmental authority; or (b) fail to remit required receipts or other documentary evidence of such payment(s) to COMPANY, Licensee shall indemnify COMPANY for any tariff, tax, fee, incremental tax, fine, interest and/or other penalty that may become payable as a result of any such failure.

  1. NON-SOLICITATION. Both parties undertake that each will not for a period of two years from the termination of this Agreement entice away or endeavor to entice away from the other party any employee of such other party. Each party acknowledges that the prohibition and restriction contained in this clause are reasonable in the circumstances and necessary to protect the business of the other party.

  1. MISCELLANEOUS OTHER TERMS. This Agreement constitutes the entire Agreement between the parties and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. In the event of a conflict between an order or requested work and this Agreement, this Agreement shall govern. No amendment or waiver of any term of this Agreement is effective unless signed in writing.  Failure of COMPANY to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.  Licensee may not assign or transfer this Agreement to a third party, except the Agreement with all orders and work requests may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of Licensee. The parties are independent contractors, and no partnership, joint venture or franchise is created. Notwithstanding what is provided in Licensee’s form purchase ordering document, any additional or conflicting terms are rejected by COMPANY and do not apply. Neither party is liable for any force majeure events. Any terms that by their nature survive termination or expiration of this Agreement, will survive. Each party must comply with the export laws of the United States in providing and using the Platform. The Convention on Contracts for the International Sale of Goods does not apply.  This Agreement may be executed in counterparts.

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About Us

Food Connex® is cloud-based software for food distributors and processors looking to improve their productivity and profitability. Food Connex helps streamline workflow, improve customer service, and reduce costly mistakes. Its easy QuickBooks integration and Order & Inventory Management tools can improve sales, order taking, fulfillment, pricing, invoicing, purchasing, production, traceability and reporting.

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IMS Software, LLC
Food Connex
36 Thurber Blvd.
Smithfield, RI 02917

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