This End Use License Agreement (“Agreement”) is an agreement between you (“Licensee”) and ePRepSolutions, LLC (“Licensor”) that sets forth Licensee’s rights and obligations with respect to Licensor’s PASS Lite App ^TM software and documentation (“Software”) that you are accessing on Licensor’s hosted website.  In order to access the Software, you must agree to the terms of this Agreement by clicking the Submit Button.  By clicking Submit, Licensee agrees to abide by and be legally bound by the terms and conditions of this Agreement, including the limited-use license, the limited warranty, and the limitation of liability.  By clicking the “Submit” button, you also represent that you have the authority to enter into this Agreement on behalf of the identified Licensee.

 

1. Background. Licensor owns and/or has the right to license the Software.  Licensee desires to obtain a license to the Software on the terms and conditions set forth in this Agreement.
2. Upon acceptance of this Agreement, Licensee shall be assigned login information to access the Software via Licensor’s hosted website and to input data (manually or by CSV file) for processing by the Software.  While using the Software, Licensee will be able to access master reports created by Licensor and to export those reports to Licensee.
3. Limited-Use License. Licensor hereby grants Licensee a nonexclusive, non-transferable license to access the Software for use on multiple computers for Licensee’s internal purposes (the “License”).  The License shall continue for a minimum period of one year from the date of acceptance of this Agreement, and for so long thereafter as Licensee continues to pay the license fees set forth below (the “License Term”), unless earlier terminated.  Upon termination or expiration of this Agreement, Licensee will promptly cease any further use of the Software and return to Licensor any tangible materials and documentation relating to the Software or destroy them with certification provided to Licensor.
4. Restrictions; Requirements. The License does not include the right to, and Licensee covenants and agrees not to, (a) disclose all or any portion of the Software to any third party; (b) sell, license, sublicense, distribute or otherwise transfer all or any portion of the Software to any third party; (c) modify, decompile, disassemble, or create derivative works from, all or any portion of the Software; (d) copy, reverse assemble, reverse compile, or reverse engineer the Software in whole or in part; or (e) otherwise infringe upon Licensor’s copyright or any other intellectual property rights in the Software.  Licensee will not remove, distort, relocate, resize, or otherwise modify in any way any copyright, trademark or other proprietary notices that appear in the Software.
5. Fees; Taxes. The license fee for Licensee’s use of the Software shall be billed and paid on an annual basis in advance.  Licensee shall be liable for, timely pay, and indemnify and hold harmless Licensor from and against, all applicable taxes and duties of any kind (collectively, “Taxes”) imposed by any taxing authority that are attributable to Licensee’s use of the Software.
6. Ownership. Licensee acknowledges that (i) all right, intellectual property rights, title, ownership and interest in and to the Software will at all times remain with Licensor, and (ii) Licensee has no rights in the Software except those expressly granted by this Agreement.  Licensee will take reasonable steps to protect the Software from any use that is not specifically authorized by this Agreement.  Licensee further acknowledges that any and all data entered into the Software by Licensee or modified in the Software by Licensee shall become the property of Licensor, for future use as Licensor desires, including but not limited to, use of the data in Software demonstrations, advertisements, and sales activities.
7. Training and Support. Support for the Software will be provided by FAQs and videos on Licensor’s website, as provided by Licensor in its sole discretion.  Upon request, Licensor may provide additional training and support at Licensor’s prevailing rates at the time of the service request.
8. Confidentiality. “Confidential Information” shall mean all information and material contained within, related to or about the Software, in whole or in part, or its environment, which is disclosed or provided by Licensor to Licensee in each party’s performance of its obligations under this Agreement, and any information which relates to or is derived therefrom, whether in tangible, intangible, oral, written, machine readable or human readable form. As part of its access to the Software, Licensee recognizes that Confidential Information will be disclosed by Licensor to Licensee.  Licensee hereby agrees that:

• Licensee shall not disclose Confidential Information to any third-party individual, corporation, or other entity without the prior written consent of Licensor and shall limit its disclosure to its employees and approved contractors having a need to know such information. The recipient shall protect the disclosed Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized dissemination or publication of the Confidential Information as the Licensee uses to protect its own confidential information of a like nature.
• The obligations herein will not apply to any Confidential Information which is: (i) available to the public other than by breach of this Agreement by Licensee; (ii) rightfully received by Licensee from a third party without confidentiality limitations; (iii) independently developed by Licensee’s employees without use of the Confidential Information or breach of this Agreement; (iv) known to Licensee prior to first receipt of same from Licensor, as evidenced in Licensee’s records; or (v) is required to be disclosed pursuant to judicial order, lawful requirement of an administrative or governmental agency or by operation of law, but then only to the extent so ordered and provided recipient uses its best efforts to advise discloser at the earliest possible time prior to or immediately after such disclosure.

 

9. Limited Warranty.

• Licensor warrants that (i) it owns or has the right to license Software to Licensee hereunder, and (ii) it has not granted any rights with respect to the Software that are inconsistent with the rights granted hereunder.
• EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9(a), THE SOFTWARE IS PROVIDED TO LICENSEE STRICTLY ON AN “AS IS” BASIS. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ORIGINALITY, RESULTS TO BE DERIVED FROM THE SOFTWARE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS WITH RESPECT TO THIS AGREEMENT OR THE SOFTWARE.  LICENSOR MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE.
• Licensee shall be entitled to access any modifications or upgrades to, or new versions of, the Software during the License Term. Licensee understands and agrees that nothing in this Agreement or otherwise obligates Licensor to upgrade or update the Software at any time during the License Term.

 

10. Limitation of Liability. Licensor SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST THE LICENSEE BY ANY THIRD PARTY, NOR SHALL Licensor BE LIABLE TO LICENSEE FOR ANY DIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING LOSS OF PROFITS, INTERRUPTION OF BUSINESS), HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT Licensor HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES

 

11. General.

(a)   This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that any attempt by Licensee to                     assign this Agreement shall be void without the express written prior consent of Licensor which may be withheld in its sole discretion, except that Licensee may assign this Agreement                        (upon notice to Licensor) to any affiliate of Licensee or in connection with any sale by Licensee of substantially all of its assets relating to the Software.

(b)   All rights and remedies of the parties hereto are separate and cumulative.  The waiver or failure of either party to exercise in any respect any right or remedy provided herein shall not be                    deemed a waiver of any further right or remedy hereunder.

(c)   This Agreement shall be subject to, governed by, and construed in accordance with the laws of the State of Colorado without regard to any of its conflict of law’s provisions that would                          cause the laws of another jurisdiction to apply.  Any action or proceeding relating to this Agreement must be brought in a federal or state court in Denver or Boulder County, Colorado                          and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.  If any legal action is brought to enforce this Agreement, the                                    prevailing party will be entitled to receive its costs, expenses and reasonable attorneys’ fees, in addition to any other relief it may receive.

(d)   The invalidity of any provision of this Agreement shall not affect the validity and binding effect of any other provision.

(e)   This Agreement constitutes the entire agreement between the parties on the subject hereof and supersedes all prior or contemporaneous agreements, negotiations, representations and                        proposals, written or oral.