Accusoft Corporation (AC) Software License Agreement
Terms of Use for Products referenced in attached Sales Order
This Software License Agreement is entered into as part of an associated Sales Order between
Accusoft Corporation located at 4001 N. Riverside Drive, Tampa, FL 33603 (hereafter “AC”), and the
Customer identified in the Sales Order. Together, this Software License Agreement and the associated
Sales Order are the “Agreement”.
AC hereby grants to Customer a limited, non-exclusive,
non-transferable right and license:
a)
To install and include in the Customer products named in the Sales Order (hereafter
“PRODUCT”), the AC software and/or services named in the Sales Order (hereafter “CODE”), for the
purposes of development, technical support, maintenance, and warranty service of PRODUCT; and
b)
To install, use, reproduce, display, or otherwise distribute or transfer copies of CODE, as
an integral part of the PRODUCT application, in executable form only, as may be further restricted by
“Video Technologies Distribution” below.
Video Technologies Distribution: CODE may contain video compression/decompression
technologies such as H.265 that are covered by third party patents. If so, AC has obtained patent licenses
covering AC’s distribution of its CODE. However AC’s licenses do not extend to PRODUCT.
Customer is responsible for obtaining any required third-party patent licenses for distribution of
PRODUCT containing any portions of CODE that include these technologies. Customer will indemnify
and hold AC harmless from any and all patent claims that arise from distribution of PRODUCT
containing any portions of CODE that include these technologies.
Customer agrees that CODE is provided "as is" and Customer assumes all responsibility for
evaluating and testing the suitability of CODE for use in PRODUCT in regards to features and
functionality as described in the CODE electronic documentation. Customer assumes all liabilities of
PRODUCT within its operations and with regard to Customer's end-users. This license grants rights to
Customer for only the CODE mentioned above and does not convey any other rights of use or
distribution to AC technology.
Customer shall pay to AC according to the Fees structure as defined in the Sales Order.
Customer shall pay to AC for the Annual Support and Upgrade maintenance described in Attachment A
herein and according to the fees and any other terms of the Sales Order. This Agreement begins upon the
Effective Date defined in the Sales Order and continues for a period specified by the Sales Order
(“Term”), unless the Agreement is amended for term after Term. This Agreement expires prior to the
Term in the event a Material Breach has occurred. A Material Breach has occurred if Customer fails to
perform any Customer obligation specified by this Agreement or if Customer fails to timely report or
fails to timely pay as specified by this Agreement.
AC hereby warrants and represents that AC has the exclusive right to grant Customer the rights
granted herein.
AC shall defend, at its own expense, any suit or proceeding (hereafter “Action”) against
Customer arising out of or based upon any such Action alleging that CODE or any portion thereof as
furnished under this Agreement, and used within the scope of the license hereunder, infringes any third
party rights in patent, copyright or trade secret in the United States. AC shall pay any costs, damages or
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awards, including court costs, awarded by any such Action provided that Customer shall promptly give
written notice of any such Action to AC and that AC shall have control of the defense of any such
Action and of the negotiations for its settlement or compromise provided that such settlement includes
an unconditional release of Customer from liability on claims that are the subject matter of such Action.
After notice from AC to Customer of its election to assume the defense of such claim or action, AC shall
not be liable to Customer for any legal or other expenses subsequently incurred by Customer in
connection with the defense thereof.
In the event that CODE, or any portion thereof, as furnished under this Agreement and used
within the scope of the license hereunder, are held in such Action to infringe a third party proprietary
right, and that use of CODE, or any portion thereof, is enjoined, AC shall, at its sole option and expense
(i) procure the right to continue using CODE, or portion thereof; (ii) replace the same with
non-infringing software of equivalent functions; or (iii) if AC determines that the foregoing options are
commercially impracticable, then accept return of the infringing material and refund the fees actually
paid by Customer to AC under this Agreement for the six (6) month period immediately preceding the
date the injunction became effective.
AC shall have no liability to Customer for any Action that is based upon or arises out of the use
of CODE in combination with PRODUCT or any other systems, equipment or software in the event that,
but for such use, the claim of infringement would not lie.
The above sets forth the entire liability of AC and the sole remedy of Customer against AC with
respect to any Action for any alleged patent, copyright or trade secret infringement by the AC CODE.
Customer will include an attribution, for example substantially similar to the following, within
PRODUCT electronic documentation or equivalent: “PRODUCT contains portions of viewing,
conversion, and imaging code owned by Accusoft Corporation, Tampa, FL.”
Customer agrees that the CODE, as well as the terms, conditions, and value of this Agreement,
are valuable to both parties and are confidential and proprietary information not to be disclosed.
Each party hereto may issue press releases concerning the relationship set forth herein and to the
use of the CODE in PRODUCT, provided each press release shall be approved in advance by the party
not preparing the press release, which consent shall not be unreasonably withheld.
Unless specifically allowed as an exception, in writing only, any and all installations of CODE
requires licensing, and also requires that a license fee be paid for such installation in the time period
specified in the Agreement. Installing CODE on a computer system is the license fee trigger and such
installation must be reported and paid for, regardless of whether or not the code is ever executed on that
computer. AC uses the terms “Copy,” “Runtime,” and “Installation” interchangeably, and alternative
meanings outside the Agreement shall not provide Customer valid exception for non-reporting licensing
and/or Installations.
If any copy of CODE is created or used other than as permitted by the license grant of this
Agreement, Customer agrees to pay AC, on the same terms and conditions as other payments due under
this Agreement, the then current published quantity one (1) price for that copy as liquidated damages
and not as a penalty.
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All license fees, maintenance fees, and payments shall be due to AC no later than within Thirty
(30) days from each due date described herein. All fees referenced in this document are in US Dollars
and are the net amount due to AC. Any value-added tax or withholding of any kind would be added to
these fees so that the net amount sent to AC will reflect the fees described herein. Any and all fees
associated with collecting monies owed under this contract, including legal fees, shall be owed and paid
for by the violating party.
Late payment charges shall be imposed on all outstanding balances for each month or portion
thereof that the outstanding balance remains unpaid, at the lesser of either the rate of One and One Half
percent (1.5%) per month or the maximum rate permitted by law for such charge (“Late Payment”). If
any Late Payment charges are not paid as part of the Late Payment, then the Late Payment charges are
themselves a Late Payment under the terms of this Agreement.
During any period when there is an unpaid Late Payment, in addition to all other remedies
available to AC, any and all Annual Support and Upgrade Subscription that would otherwise be due
under this Agreement shall be suspended and shall not be provided to Customer. Customer shall have
no right of refund, offset, or any claim of breach or damages of any kind resulting from this suspension.
Terms. All preprinted terms contained in any document used by Customer to order software
and/or user licenses from AC are hereby fully rejected by AC and shall have no legal effect.
Governing Law. This Agreement shall be governed by and construed in accordance with the
substantive laws of the State of Florida, without regard to conflicts of law.
Venue and Attorneys‘ Fees. Any action related to or arising out of the Agreement, or any
amendment to the Agreement, shall be brought solely in the state court sitting in Hillsborough County,
Florida, or the federal courts in the Middle District of Florida, Tampa Division. The parties hereby
waive any objections to jurisdiction or venue in any proceeding before such courts and consent to the
personal jurisdiction of such courts. The rights specified herein are in addition to any and all other rights
either party has under applicable law. The prevailing party in any dispute shall be entitled to recovery of
its attorneys’ fees and other expenses incurred in the dispute.
ATTACHMENT A
Annual Support and Upgrade
Provided Customer pays AC the amount agreed upon in the Sales Order, and upon payment, Customer
is then entitled to full support and all upgrades of the CODE defined herein, and email for one (1)
primary contact and one (1) backup contact, until the last business day corresponding to the anniversary
of the Effective Date as described herein.
Support is to be provided via https://www.accusoft.com/support/. All upgrades, service packs, and
interim releases to the CODE shall be provided by ftp download with all the unlock and registration
information needed to be fully functional.
Limited Warranty. AC hereby warrants to Customer
that the CODE will operate substantially in
accordance with the documentation for the period specified herein, unless failure to perform is caused in
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whole or in part by improper, unauthorized, or negligent use, modification, or operation by Customer.
AC does not warrant that operation of the CODE will be error free or uninterrupted, or that all
non-conformities can be corrected.
Sole Remedy. In the event the CODE does not behave as warranted, AC will exercise commercially
reasonable efforts to (i) correct the nonconformity, (ii) replace the nonconforming CODE, or (iii) refund
monies paid for the nonconforming items. To exercise this sole remedy, Customer must give prompt
written notice to AC and a description of the nonconformity within the applicable warranty period,
provide all information reasonably requested by AC to recreate, evaluate, and correct the condition, and
return the nonconforming item to AC at the risk and expense of Customer. At such time as AC
examines the returned item and confirms that a nonconformity exists, Customer will receive this sole
remedy.
Disclaimer. THE LIMITED WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, WARRANTY AGAINST
INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE
HEREBY EXPRESSLY DISCLAIMED.
End of Document
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