Software License Agreement
This Software License Agreement (the "Agreement") is made as of __________ [month] [date] , 2016 ("Effective Date"), by and between Numeraxial LLC ( hereinafter "Numeraxial"), with its address at 670 Riverside Drive, New York, NY 10031, and ________________, with its address at ________________________________ ("Client").
Numeraxial has developed a proprietary software that provides business analytics, investment analytics, platform applications, market data analytics and real-time quantitative risk analysis for use by hedge funds, private equity funds, and other financial companies investing in business and financial instruments. Numeraxial desires to license its financial risk analysis software (“Software”) to Client as may be customized for Client’s sole and individual use.
The parties agree as follows:
1.1. License Grant. Subject to the terms of this Agreement, Numeraxial hereby grants to Client during the Term of this Agreement a limited, non-exclusive, non-transferable, non-sublicensable license to use the Software. (the “License”). 1.2. Definitions. 1.2.1. The term “Software” means Numeraxial’s proprietary software in object code form licensed to Client under this Agreement, including the computer programs, APIs, procedures, rules and/or routines embodied in the computer program, and documentation provided in connection with the Software and related computer files, as well as bug-fixes, error-correction releases, updates, upgrades, enhancements, modifications, changes, new versions and replacement thereof as provided from time to time. 1.2.2. The term “Intellectual Property” means all works of authorship, inventions (whether or not patentable), conceptions, software (in source code and object code), algorithms, techniques, architecture, designs, technology, know how, data, methodologies, information and materials, and all related intellectual property rights throughout the world, including copyrights, patents, mask works, trademarks, service marks, trade secrets, authors’ rights, rights of attribution, and other proprietary rights and all applications and rights to apply for registration or protection of such rights. 1.3. Restrictions. Except as provided herein, Client shall not: (i) use, copy, adapt, translate, publish, display, sublicense, rent, lend, transfer, distribute, make derivatives (including without limitation improvements, enhancements, revisions, modifications) of the Software; (ii) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of the Software; (iii) remove any copyright, trademark, patent or other proprietary notices from the Software; (iv) use the Software for any purpose other than as expressly authorized in this License; or (v) challenge the validity of the copyright or any other rights in the Software, or Numeraxial's right, title or interest thereto. 1.4. Copies. Client may make [No.] copy(ies) of Software and [No.] copy(ies) of the documentation solely for backup and archival purposes. Client agrees to maintain and make available to Numeraxial, upon request, an accurate record of the whereabouts of the Software and any backup copy(ies) .
Numeraxial will provide the maintenance and support services for the Software as shown on Exhibit A: (a) upon conclusion of the Software Warrant Period provide in Section 3.1 below, preventive and remedial services to maintain the Software in good operating condition in compliance with this Agreement; (b) corrections, enhancements, improvements, releases, versions and updates; and (c) telephone and online support to report and resolve issues regarding, implementation, configuration, use and operation of the Software and status of fixes (“Software Support”). Such services will be available 24/7 except as otherwise specified in advance and will be performed by personnel fully qualified to do so and familiar with both the Software and Client’s specific use of the Software.
The initial term of this Agreement, including the term of the License granted in Section 1.1, shall commence on the Effective Date and continue for a period of _________ (the “Initial Tem”). Unless a party provides written notice to the other party if its intention not to renew this Agreement, the Agreement shall automatically renew for additional _______ periods (each a “Renewal Term”) until terminated by thirty (30) days prior written notice to the other party. The Initial Term and any Renewal Terms are collectively referred to herein as the “Term.”
Numeraxial shall retain all right, title and interest in the Software, any derivative works or copies thereof. All copyrights, patents, trade secrets, or other Intellectual Property rights associated with the Software, Software Support Services and ideas, concepts, techniques, inventions, improvements, processes, features, functionalities, or works of authorship related to the Software, or services developed or created by Numeraxial or a third party shall belong exclusively to Numeraxial.
5.1 Fees. Client shall pay the licensing fees and support services fees to Numeraxial specified in Exhibit B hereto. 5.2 Payment. All nondisputed amounts owed hereunder shall be in U.S. dollars and due and payable thirty (30) days from receipt of the invoice. Without limitation of Numeraxial’s remedies for nonpayment or late payment, Numeraxial shall have the right to charge Client and Client shall pay interest on overdue amounts at the rate of one and one-half percent (1.5%) per month, following notice from Numeraxial. 5.3 Taxes. To the extent that sales tax applies in connection with the license granted hereunder, Client shall pay (or shall pass through to any merchants) the imposition of sales tax.
6.1 Software Warranty. Numeraxial warrants, for a period of ___ days (the “Software Warranty Period”) from installation that the Software will substantially conform to the Software documentation. In the event the Software does not materially conform to this warranty during the Software Warranty Period, Numeraxial will provide a suitable fix, patch or workaround for the problem, which may be included in a future release, or provide a replacement version of the Software that conforms to the Software documentation. 6.1.1 Disclaimers. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES CONTAINED IN SECTION 6.1 regarding the conformance of the Software to the documentation, NUMERAXIAL HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. The warranty does not apply to defects or errors in Software that are caused by: (i) Client’s failure to follow Numeraxial’s environmental, installation, operation or maintenance instructions or procedures set forth in the Software documentation; (ii) Client’smishandling, misuse, negligence, or improper installation, deinstallation, storage, servicing or operation of hardware or Software (including use with incompatible hardware or software), (iii) alterations, modifications or repairs not made by or authorized by Numeraxial in writing, (iv) inability to operate in conjunction with other hardware or software not provided by Numeraxial or not specifically indicated as compatible in the Software documentation; and (v) power failures, surges, fire, flood, lightning, accident, actions of third parties or other like events. 6.2 EXCLUSIVE REMEDY. THE CORRECTIVE ACTIONS UNDER THIS SECTION ARE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND NUMERAXIAL’S SOLE LIABILITY FOR DEFECTIVE OR NONCONFORMING SOFTWARE. 6.3 Each party represents and warrants to the other party that: (a) it has the necessary authority to enter into this Agreement and is not subject to any agreement or other constraint that would prohibit or restrict it right or ability to enter into, or carry out, its obligations hereunder; (b) it shall not violate any law, rule, or regulation applicable to it in connection with its performance of this Agreement or the conduct of its business as it pertains to this Agreement; (c) to its knowledge, the services, solutions, information, technology or the Intellectual Properties licensed or provided hereunder does not and will not (i) infringe upon the Intellectual Property rights of any third party or (ii) contain any unintended code, including without limitation, any computer viruses, worms, or Trojan-horse routines that could adversely affect the other Party’s computer systems. 6.4 Numeraxial shall as soon as possible and without unreasonable delay notify Client of (a) any actual, attempted or reasonably suspected breach of security of the Software (b) any actual, attempted or reasonably suspected unauthorized access to or acquisition, use, loss, destruction, alteration, compromise or disclosure of the Software (c) any circumstance pursuant to which applicable law requires notification of such breach to be given to affected parties or other activity in response to such circumstance (each, a “Security Breach”).
7.1 Confidential Information. The term "Confidential Information" shall mean all information or material that the disclosing party has furnished, or is furnishing, to the receiving party, whether furnished before or after the date of this License Agreement, whether tangible or intangible and in whatever form or medium provided, as well as all information generated by the receiving party or by its representatives that contains, reflects, or is derived from the furnished information that has or could have commercial value or other utility in the business in which the parties are engaged, and which is maintained by the disclosing party as confidential and is identified as confidential. Client acknowledges that the Software is and contains trade secrets and agrees to treat the same as Confidential Information subject to the confidentiality obligations of this Agreement. Numeraxial acknowledges all information or material furnished by Client including but not limited to its client’s portfolio positions and investment strategies that is identified by Client as confidential including orally shall be the Confidential Information subject to the confidentiality obligations of this Agreement. For purposes of this Agreement, Confidential Information shall not include, and the obligations herein shall not apply to, information that: (a) is now or subsequently becomes generally available to the public through no fault of the receiving party; (b) the receiving party can demonstrate was rightfully in its possession prior to disclosure to the receiving party by disclosing party; (c) is independently developed by the receiving party prior to the date of this Agreement without the use of any Confidential Information provided by disclosing party; (d) the receiving party rightfully obtains from a third party who has the right, without obligation to disclosing party, to transfer or disclose such information. 7.2 Use of Confidential Information. Each party agrees to maintain in confidence all Confidential Information of the disclosing party and shall take commercially reasonable precautions to prevent such information from being disclosed to any unauthorized third party without written consent of the disclosing party. If there is any unauthorized disclosure or loss of, or inability to account for, any Confidential Information, the receiving party shall promptly: (i) notify the disclosing party upon becoming aware thereof; (ii) take such actions as may be necessary or reasonably requested by disclosing party to minimize the disclosure, losses or violation; and (iii) cooperate in all commercially reasonable respects with disclosing party to minimize the violation and any damage resulting therefrom. 7.3 Exclusions. If the receiving party is required by a court or other body of competent jurisdiction to disclose the Confidential Information of the disclosing party, the receiving party may disclose only so much Confidential Information as is legally required. The receiving party shall make commercially reasonable effort to give notice of such compelled disclosure to the disclosing party so that the disclosing party has a reasonable opportunity to object to such disclosure. 7.4 Equitable Relief. Nothing in this Agreement shall be deemed to be any transfer, conveyance, assignment or waiver (by express license, implied license or otherwise) of any Intellectual Property right that the disclosing party has or claims to have in the Confidential Information. In addition to any other remedy available at law, in equity or under this Agreement, each party shall be entitled to obtain injunctive relief without proof of irreparable injury.
8.1 Default. Subject to Section 8.3, either party shall be entitled to terminate this Agreement in the event of a failure by the other party to perform any of its material obligations under this Agreement if such breach is not cured within thirty (30) days after receipt of notice thereof from the non-defaulting party or within fifteen (15) days after receipt of such notice if such breach relates to the payment of fees or other amounts owed hereunder. 8.2 Insolvency. This Agreement shall terminate upon the election of and notice from a party to the other if the other party is adjudged insolvent or bankrupt, or the institution of any proceedings by or against the other party seeking relief, reorganization or arrangement under any laws relating to insolvency, or any assignment for the benefit of creditors, or the appointment of a receiver, liquidator or trustee of any of the other party’s property or assets, or the liquidation, dissolution or winding up of the other party’s business. 8.3 Failure to Comply with License and Restrictions. Numeraxial may terminate the Agreement and/or the licenses granted hereunder and exercise all available rights by giving Client written notice, effective immediately, if within thirty (30) days of Client’s receipt of a reasonably detailed written request to cure, Client has not cured all breaches of the license limitations or restrictions. Upon such termination, Client will immediately pay all Fees outstanding, cease the use of all Software, return or delete, at Numeraxial’s request, all copies of the Software in the Client’s possession, and confirm compliance with all obligations in this paragraph in writing. 8.4 Effect of Termination. Upon expiration or termination of this Agreement: (i) all use of the Software by Client shall cease; (ii) Client shall pay to Numeraxial all accrued fees, costs and other amounts owing under this Agreement.
9.1 Indemnification. Numeraxial shall indemnify, defend and hold harmless Client, its directors, officers and employees from all claims, liabilities, damages suits, action, or penalties (including reasonably attorneys’ fees and costs) which may be adjudged or decreed against Client arising from any claim by a third party alleging that any the Software infringes the U.S. patents, copyrights or trade secrets of that third party provided, however, that Client shall have given prompt written notice to Numeraxial of the commencement of the suit or proceeding or any written threat to bring a suit or proceeding and shall cooperate with Numeraxial to facilitate the defense of any such suit, proceeding or threat. If Client seeks indemnification under this Section, Numeraxial shall have the right by its counsel to control the defense and any settlement of the suit or proceeding. Client shall not settle or compromise any such suit or proceeding without the prior written consent of Numeraxial. 9.2 Exclusion. Numeraxial shall have no liability or obligation, including, without limitation, to defend or indemnify Client, with respect to any claim arising out of: (i) use of other than the most current release of the Software, unless the infringing portion is also in that release; (ii) improper use of the Software or use outside the scope of the Software documentation or the License; (iii) use of the Software in combination with non-Numeraxial hardware or software if the infringement claim would not have arisen but for such combination; or (iv) any modification, alteration or derivation of the Software not specifically authorized in writing by Numeraxial. 9.3 Exclusive Remedy. THE FOREGOING STATES THE SOLE LIABILITY OF NUMERAXIAL AND THE SOLE REMEDY FOR CLIENT RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY PATENT, COPYRIGHT OR OTHER PROPRIETARY RIGHT BY THE SOFTWARE.
EXCEPT WITH RESPECT TO BREACH OF SECTION 1 (LICENSE GRANT AND USE), SECTION 4 (OWNERSHIP), SECTION 7 (CONFIDENTIALITY), NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, COST OF CAPITAL, COST OF SUBSTITUTE FACILITIES OR EQUIPMENT, DOWNTIME COSTS OR CLAIMS OF CUSTOMERS, WHETHER OR NOT SUCH PARTY HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO A BREACH OF EITHER PARTY’S OBLIGATIONS UNDER SECTION 4 (OWNERSHIP) AND SECTION 7 (CONFIDENTIALITY), THE LIABILITY OF EITHER PARTY HERETO UNDER THIS AGREEMENT, WHETHER ARISING OUT OF BREACH OF CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY) OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT LIABILITY) SHALL IN NO EVENT EXCEED THE AGGREGATE AMOUNT PAID BY CLIENT TO NUMERAXIAL UNDER THIS AGREEMENT. THE FOREGOING LIMITATION IS NOT APPLICABLE TO FEES DUE AND OWING UNDER THE AGREEMENT.
Neither party shall be liable for delays in or failures of performance (excluding failure to pay) under this Agreement due to unforeseen circumstances or causes beyond its reasonable control (an “excusable delay”), including, but not limited to, war (including civil war), riots, embargoes, acts (whether sovereign or contractual) of civil or military authorities, acts or failures to act of any government, acts of terrorism, fires, floods, explosions, the elements, epidemics, quarantine restrictions or strikes. In the event of an excusable delay as defined above, the affected party shall promptly notify the other party in writing of such delay and an equitable adjustment shall be made in the completion schedules and any other affected terms of this Agreement.
12.1 Amendment. This Agreement may not be modified, amended, rescinded, canceled or waived, in whole or in part, except by written amendment signed by both parties hereto. 12.2 Assignment. Neither party shall assign or otherwise transfer its rights or obligations under this Agreement or the licenses granted hereunder to any third party without the written consent of the other party. , other than to such parties as permitted by Numeraxial by a prior written consent, and any such assignment shall be null and void. 12.3 Binding Effect. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. 12.4 Compliance with Laws. Each party shall comply with all applicable federal, state, local and foreign laws and regulations relating to their performance under this Agreement. 12.5 Entire Agreement. This Agreement, including any exhibits attached hereto which are incorporated herein, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements by and between the parties as well as all proposals, oral or written, and all prior negotiations, conversations and discussions between the parties related hereto. 12.6 Governing Law; Waiver of Jury Trial. This Agreement shall be governed by the laws of the State of New York (irrespective of its choice of law principles). Each party consents to the exclusive jurisdiction of the state and federal courts sitting in the borough of Manhattan, New York, New York in any action, suit or proceeding hereunder. The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement. 12.7 Commercial Use. Software delivered pursuant to this Agreement is commercial computer software subject to the terms of the License, and all other terms, set forth in this Agreement. 12.8 Headings. The headings of the Sections of this Agreement are inserted for convenience only and do not form a part or affect the meaning hereof. 12.9 No Third Party Beneficiaries. No provisions of this Agreement are intended nor shall be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other or third party. 12.10 Notices. Notices permitted or required to be given hereunder shall be deemed sufficient if given by registered or certified mail, postage prepaid, return receipt requested, by private courier service, or by facsimile addressed to the respective addresses of the parties as written above or at such other addresses as the respective parties may designate by like notice from time to time. Notices so given shall be effective upon receipt by the party to which the notice is given. 12.11 Severability. If any provision of this Agreement is found to be unenforceable under any of the laws or regulations applicable thereto, such provision terms shall be deemed stricken from this License Agreement, but such invalidity or unenforceability shall not invalidate any of the other provisions of this Agreement. 12.12 Survival. Sections 4 (Ownership), 5 (Fees, Payment and Taxes (with respect to amounts owing)), 7 (Confidentiality), 8.4 (Effect of Termination), 9 (Indemnity), 10 (Limitation of Liability) and 12 (Miscellaneous), and any other provision that by its nature would be intended to survive, shall survive expiration or termination of this Agreement. 1.5. Waiver. No failure by either party to take any action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right. 1.6. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signature on each such counterpart were upon the same instrument, and a facsimile transmission or electronic delivery (e.g., .pdf) of a manual signature shall be deemed to be an original signature. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
Numeraxial LLC By: _____________________________________ Name: __________________________________ Title: ___________________________________
[Client] By: _____________________________________ Name: __________________________________ Title: ___________________________________