Last updated: February 4, 2021
USER SOFTWARE TERMS AND CONDITIONS
These User Software Terms and Conditions are incorporated by reference into a User Software License Agreement and Order Form that has been entered into between Summerset Technologies, LLC, (“Licensor”) and Licensee. These User Software Terms and Conditions, the User Software License Agreement and the Order Form are collectively referred to as this “Agreement.”
Section 1. Definitions.
As used in this Agreement, the following terms shall have the meanings hereinafter set forth:
1.1 “Agreement” means the User Software License Agreement, User Software Terms and Conditions and any Order Form.
1.2 “BIS” means the United States Bureau of Industry and Security.
1.3 “Claimed Infringement” means any claim, suit, or proceeding brought against Licensee alleging that Licensee’s Designated Use(s) of the Licensed Products, beginning during the Term of this Agreement, infringes any United States patent, trade name, trademark, service mark, trade secret, copyright, or other proprietary right of any third party. For clarity, the term “Claimed Infringement” shall not include any claim, suit, or proceeding based on actions taken by Licensee before the Term of this Agreement began.
1.4 “Designated Use(s)” means the use or uses specified in the Exhibits to this Agreement. If no Designated Use(s) are specified in a given Exhibit to this agreement, the Designated Use(s) for purposes of that Exhibit will be to market, to sell, or to facilitate the marketing or sale of vehicles at auction.
1.5 “Documentation” means the materials and documents pertaining to the Licensed Products, including, without limitation, user guides, manuals, diagrams, drawings, test programs, printouts, and any other written material, provided to Licensee by Licensor pertaining to the Use of the Licensed Products.
1.6 “Effective Date” means, with regard to a given Licensed Product, the Effective Date specified in the preamble to the Agreement
1.7 “Event of Default” means any of the events described in Section 12.1.
1.8 “Index Rate” means the Wall Street Journal prime rate, as published in the Money Section of the Wall Street Journal. If the Index Rate becomes unavailable during the Term of this Agreement, the Licensor may designate a substitute Index Rate after notifying Licensee.
1.9 “Initial Fee” means the amount identified as the Initial Fee in Order Form.
1.10 “Initial Term” means the initial term of this Agreement, as specified in Order Form.
1.11 “License” means the license granted to Licensee by this Agreement.
1.12 “Licensed Products” means the parts of the System described in the attached Exhibits to this Agreement and any Order Form as those to which the Licensee is granted a license.
1.13 “Licensee” means the entity identified as the Licensee on Order Form to this Agreement.
1.14 “Licensor” means Summerset Technologies, LLC.
1.15 “Transactional Fee” means any amount identified as Transactional Fee in the Order Form, whereby Licensee agrees that said amount will be subject to the two adjustments numerically listed herein as determined by the Licensor at is sole discretion upon 30 days’ notice: 1) annual increase near the consumer price index, 2) increase the Transactional Fee related to any third-party services if the third party increases the cost of the service to Licensor.
1.16 “Proprietary Information” is defined in Section 8.
1.17 “Release” means an enhancement or modification to the Licensed Products, or a new module or supplementary module intended to function in conjunction with the Licensed Products, that represents a new generation of the Licensed Products, that for the sake of clarity does not represent a new generation of the Licensed Products such as what is commonly referred to as such as what is commonly referred to as “AuctionMaster Version 3” or “V3”, and that Licensor has decided, in its sole discretion, to make commercially available to its customers. Releases shall not include any specialized software developed for individual customers.
1.18 “Renewal Term” means, with regard to a given Licensed Product, the renewal term of this Agreement, as specified in the Exhibit to this Agreement relating to that Licensed Product. If no Renewal Term is specified in the relevant Order Form to this Agreement, the Renewal Term with regard to that Licensed Product shall be one (1) year.
1.19 “System” means the products, services, software programs and systems, and related modules owned by Licensor and utilized in the marketing, sale, and auction of automobiles.
1.20 “Term” means the Initial Term of this Agreement, together with any Renewal Terms for which the Agreement has renewed.
1.21 “Update” means any minor enhancement, minor improvement, or other minor modification to the Licensed Products that Licensor has decided, in its sole discretion, to make available without additional charge to its customers.
1.22 “Usage,” “Use,” “Using” or “Used” includes the acts of operating, transferring, transmitting, executing, processing, or storing the Licensed Products; the acts of transferring, transmitting, executing, processing, or storing any data or information through the operation of the Licensed Products; and the acts of displaying any portion of the Licensed Products, or displaying any data or information, through the operation of the Licensed Products.
Section 2. Hosting.
2.1 Hosting. For AuctionMaster services only, Licensor shall host the Licensed Products on servers within Licensor’s control and make the Licensed Products available for Use by Licensee and Licensee’s customers as set out in the Exhibits to this Agreement.
Section 3. Additional Services.
3.1 Customization. Licensee acknowledges that Licensor has made no representations or warranties to Licensee of any kind concerning future changes, Updates or Releases (except as expressly provided by Sections 3.2 and 3.3 below or in any attached Exhibit), or any customization of the Licensed Products.
3.2 Mandated Updates. If Licensor, in its sole discretion, determines that any Updates to the Licensed Products are necessary or appropriate, then Licensor may provide such Updates to Licensee, and in such case the Updates will be provided to Licensee at no charge. If any such Updates are provided to Licensee, Licensee shall install, or permit Licensor to install, such Updates to the Licensed Products. Licensee shall promptly install all Updates and Licensor shall bear no liability for Licensee’s failure to install Updates.
3.3 Releases. If Licensor develops any new Releases of the Licensed Products (which for the sake of clarity does not constitute a new version such as “v3”) during the Term, then Licensor will provide such new Releases to Licensee free of charge. Licensee will have thirty (30) days to accept any Release as part of the Licensed Products.
3.4 Third-Party Data or Services. Licensee will be responsible for any costs or fees associated with third-party data or services that Licensee desires to use (including but not limited to third-party market data or third-party voice, bulk email, fax, or other services).
3.5 Installation, Consulting, and Training. Licensor will provide installation, training, and other consulting services as provided in the Exhibits to this Agreement or as otherwise agreed by the parties. Licensee agrees to reimburse Licensor for any such services provided, as well as all reasonable disbursements, travel time, and costs incurred in connection with visits by Licensor’s representatives or technical services personnel, including but not limited to all transportation, lodging, meals, rental car use, expenses to, from and at transportation hubs, and any related expenses. Unless otherwise agreed in writing, custom software development services will be billed to Licensee at a rate of two hundred and fifty dollars ($250) per hour, and any other installation, training, or consulting services will be billed to Licensee at a rate of one hundred and fifty dollars ($150) per hour. Travel time will be billed at one half the regular rate.
3.6 Technical Support. Except as otherwise set out in the Exhibits to this Agreement, Licensor agrees to provide technical support as set out in this Section. Licensor will provide telephonic technical support for the Licensed Products seven days a week between the hours of 8:00 a.m. and 7:00 p.m. Eastern Time. Licensor will service Licensee’s first five (5) calls per month at no charge. Additional calls will be charged as follows:
(a) Calls placed between 9:00 a.m. and 6:00 p.m. Eastern Time, Monday to Friday, will be charged at $25 per call plus $15 for each ten (10) minutes (or portion thereof) of call time; and
(b) Calls placed before 9:00 a.m. or after 6:00 p.m. Eastern Time, and Calls placed at any time on Saturday or Sunday, will be charged at $45 per call plus $15 for each ten (10) minutes (or portion thereof) of call time.
Section 4. Restricted Use.
4.1 Restricted Use. Except as expressly permitted by the Agreement, Licensee shall not Use, voluntarily permit, or allow (in violation of Sections 4.2 or 4.3 hereof, or otherwise) the Licensed Products to be Used, directly or indirectly, in any manner that would enable any other party to Use, copy, or have access to any of the Licensed Products, except for any Use, copying, or access necessary for the ordinary functioning of the Licensed Products. Licensee shall promptly notify Licensor of any unauthorized disclosure, reproduction or distribution of the Licensed Products which comes to Licensee’s attention or which Licensee reasonably suspects.
4.2 No Copying. Licensee shall not make, have made, or permit its employees or any third parties to make any copies or translations of the Licensed Products, in whole or part, for any reason, including without limitation backing up data (except for any recommended backup procedures detailed in any attached Exhibit), nor shall Licensee permit any other files to become merged with the Licensed Products.
4.3 Replacement of Lost or Damaged Software. If the Licensed Products or any portion thereof become damaged through no fault of Licensee, Licensor shall replace the same for no charge, provided that Licensee returns all damaged portions and provides Licensor with a statement specifying in detail the circumstances involving the damage. If the Licensed Products or any portion thereof become damaged under circumstances for which Licensee bears fault, Licensor shall replace the same for a charge to be determined in Licensor’s reasonable discretion.
4.4 No Transfer of License. Except as specifically provided by Section 6.6, Licensee shall not transfer or assign this License or any of the Licensed Products to any third party, provided, however, that Licensee may sublicense users as, and to the extent, provided in the applicable Agreement . Except as specifically permitted, Licensee shall not move or transfer the Licensed Products from one computer to another or over a local area network or otherwise, or provide any Use of the Licensed Products in a computer service business, multiple-CPU, or multiple-user arrangement. In no event shall Licensee make all or any part of any Licensed Products available to any third person as part of a data services operation or application services provider or otherwise.
4.5 No Modification or Decompilation. Licensee shall not modify, disassemble, decompile, reverse engineer, recreate, or generate any Licensed Products or any portion, version, or derivative work thereof. Licensee shall not attempt any of the foregoing or aid, abet, or permit any others to do so. Licensee shall not use any Licensed Products for the purpose of developing products which compete with the Licensed Products.
4.6 Proprietary Markings. Licensor may affix from time to time such copyright, trademark, confidentiality notice, mark, or legend on or as a part of any Licensed Products. Licensee shall not remove, erase, or modify any such copyright, trademark, confidentiality notice, mark, or legend.
Section 5 Default.
5.1 Events of Default. The occurrence of any of the following events shall constitute an Event of Default:
(a) Payment. The failure of Licensee to pay Licensor any sums or amounts when due under this Agreement, where such delinquency is not fully corrected within ten (10) days following Licensor’s written demand; or
(b) Material Covenants. The failure of Licensee or Licensor to observe, keep, or perform any material covenant, term, or condition of this Agreement, where such non-performance is not fully corrected by the non- performing party within twenty (20) days following written demand by Licensor or Licensee; or
(c) Bankruptcy. To the extent permitted by law, the filing of a petition for Licensee’s or Licensor’s bankruptcy, whether voluntary or involuntary, or upon an assignment of Licensee’s or Licensor’s assets for the benefit of creditors, or upon the appointment of a trustee or receiver to take charge of the business of Licensee or Licensor for any reason, or if Licensee or Licensor becomes insolvent or voluntarily or involuntarily dissolved; in any of such events, this Agreement shall terminate upon thirty (30) days’ prior written notice from the non-defaulting party unless the condition giving rise to such notice is corrected within such thirty (30) day period; or
(d) Transfers. Licensee (i) makes a general assignment for the benefit of its creditors; (ii) sells, transfers, or disposes of all or substantially all of its assets or property without the prior written consent of Licensor; or (iii) copies (except as expressly permitted by this Agreement), sells, transfers, assigns, or disposes of (or attempts to so copy, sell, transfer, assign, or dispose of) its interest in, or part or all of, any of the Licensed Products, without the prior written consent of Licensor, which shall not be unreasonably withheld.
5.2 Remedies. Upon the occurrence of any Event of Default, except as provided by Section 5.4 below, the non-defaulting Party may pursue any right or remedy available at law or in equity including, without limitation (i) terminating this Agreement, (ii) obtaining such equitable relief as the non-defaulting Party may deem necessary to enjoin any existing or threatened breach of any provision hereof intended to protect the non-defaulting Party’s interest in or the nature of the Licensed Products, without bond; or (iii) taking such other actions and seeking such further remedies as may be appropriate at law or in equity. All of these remedies shall be deemed cumulative and a party’s decision to seek fewer than all available remedies shall not be deemed an election of remedies.
5.3 Termination. Upon any termination of this Agreement, all rights of Licensee under this Agreement shall cease as of the termination date, including, but without limitation, the License granted to Licensee under this Agreement. Any termination of the Agreement under this Section shall be in addition to, and not a waiver of, any remedy at law or in equity available to Licensor arising from any breach of this Agreement by Licensee.
5.4 Equitable Relief. Licensee agrees that any unauthorized Use, reproduction, or transfer of the Licensed Products, or any disclosure of any Proprietary Information concerning the Licensed Products by Licensee, shall diminish substantially the value to Licensor of the Licensed Products. Licensee agrees that if Licensee breaches any of such obligations, Licensor shall be entitled to equitable relief to protect its interests in the Licensed Products without bond, or if bond shall nonetheless be required, Licensee agrees that bond in the amount of $1,000 shall be deemed sufficient, except that such equitable relief shall not be available to enjoin the results of any Designated Use of the Licensed Products, including the sale or distribution of any film created through a Designated Use of the Licensed Products by Licensee. Licensee hereby acknowledges and agrees that remedies other than equitable relief may be inadequate to protect Licensor fully in such circumstances.
Section 6. General Legal Provisions.
6.1 Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of Texas, excluding any choice-of-law principles and the United Nations Convention on Contracts for the International Sale of Goods.
6.2 Publicity. Upon signing this Agreement, the Parties agree to issue a mutually agreeable press release regarding this Agreement but agree to keep confidential the terms of the Agre Would ideally add this concept (anonymized) to the website terms and conditions ement.
6.3 Severability. If one or more of the provisions contained in this Agreement is held invalid, illegal, or unenforceable in any respect by any court of competent jurisdiction, such holding will not impair the validity, legality, or enforceability of the remaining provisions.
6.4 Headings. The section headings used in the Agreement and the Terms and Conditions are included for reference purposes only and shall not affect the meaning or interpretation of this Agreement in any way.
6.5 Survival. Sections 2, 3, 5, 6, 7, 8, 9 and 10 of the Agreement and Sections 1, 2, 3, 4, 5.4 and 6 of the Terms and Conditions shall survive the expiration or any earlier termination of this Agreement.
6.6 Successors and Assigns. Except as hereinafter provided, neither Licensor nor Licensee shall have the right to assign this Agreement without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld. Each of Licensor and Licensee may assign its interest in this Agreement to the merged entity in connection with its merger into or with another entity, or to a third party to whom it sells all or substantially all of its assets. Any purported assignment not in accordance with this Section shall be void and not merely voidable. When assigned as permitted above, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties hereto.
6.7 Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party against whom the waiver or consent is asserted. No waiver or excusal of any breach of or non-compliance with this Agreement on a given occasion shall operate as a waiver on any other occasion.
6.8 Attorneys’ Fees. The substantially prevailing party in any litigation, arbitration, or court proceeding to enforce this Agreement or any of its terms, as determined by the court or tribunal, shall be entitled to recover, in addition to any other amounts awarded, all costs, expenses, and attorneys’ fees incurred.
6.9 Export Control. Licensee is advised that the Licensed Products are of U.S. origin and subject to the U.S. Export Administration Regulations. The Licensed Products also may be subject to applicable local laws and regulations. Diversion contrary to U.S. and/or applicable local country law or regulation is prohibited. Licensee agrees not to directly or indirectly export, re-export, import, download, or transmit the Licensed Products to any country or end user, or for any use that is contrary to applicable U.S. and/or local country law or regulation (including but not limited to those countries embargoed by the U.S. government). Licensee represents that neither the BIS nor any other governmental agency has issued sanctions against Licensee or otherwise suspended, revoked, or denied Licensee’s export privileges. Additionally, Licensee is advised that the Licensed Products may contain encryption algorithms or source code that may not be exported to government or military end users without a license issued by the BIS and any other country’s governmental agencies, where applicable.
6.10 Negotiation. This Agreement is the result of negotiation between the parties and, accordingly, shall not be construed more strongly for or against either party regardless of which party was more responsible for the preparation of this Agreement or any portion thereof.
6.11 Force Majeure. Except as noted below, neither party shall be liable for any breach of its obligations under this Agreement resulting from a cause beyond its reasonable control, including but not limited to fires, strikes (of its own or another’s employees), insurrection, riots, endemics, pandemics, embargoes, terrorist acts, container shortages, wrecks, delays in transportation, inability to obtain supplies and raw materials, or requirements or regulations of any civil or military authority. Under no circumstances, however, may such an event excuse a party from any obligation to pay any amounts or sums due to the other party. Each of the parties agrees to promptly notify the other upon becoming aware of an event described in this section. This notice must describe in detail the circumstances giving rise to the event. If a default due to an event described in this section shall continue for more than four weeks, the party not in default will be entitled to terminate this Agreement. The parties will retain any liabilities existing at the time of such a termination, but neither party will incur any additional liability to the other as a result of the termination.