GENERAL TERMS AND CONDITIONS
ARTICLE I - MISCELLANEOUS TERM
1. ASSIGNMENT. CUSTOMER may assign this Agreement in whole or in part only with the prior written consent of ALLIANT SYSTEMS, LTD. and payment of ALLIANT SYSTEMS’ then current license transfer fee.
2. CONFIDENTIAL INFORMATION. The parties hereto agree that all proprietary information disclosed by the other during performance of this Agreement, and identified as proprietary, shall be held in confidence and used only in performance of this Agreement. Each party will exercise the highest standard of care to protect the other’s proprietary data from unauthorized disclosures. If such data is publicly available, already in one party’s possession or known, or is thereafter rightfully obtained by one party from sources other than the other party, there shall be no restriction in its use.
3. WAIVER. Any waiver by either party of any provision of this Agreement shall not imply a subsequent waiver of that or any other provision.
4. NOTICE. Any notices or demands required to be given herein shall be given to the parties in writing to sales@alliantsystems.com.
5. ENTIRE AGREEMENT. It is expressly agreed that this Agreement embodies the entire agreement of the parties in relation to the subject matter hereunder, and that there is no other oral or written agreement or understanding between the parties at the time of execution hereunder. Further, this Agreement cannot be modified except by the written agreement of all parties hereto.
6. GOVERNING LAW AND VENUE. The parties agree that this Agreement shall be governed by the laws of the State of Texas. Any legal proceeding arising out of or in any way related to this Agreement shall be brought and litigated exclusively in the United States District Court for the Northern District of Texas, Dallas Division, to the extent it has subject matter jurisdiction, and otherwise in the Texas District Courts sitting in Dallas County, Texas. The parties waive and agree not to assert that any such proceeding is brought in an inconvenient forum or that the venue thereof is improper. Except to the extent that all provisions of this Agreement are clearly inconsistent therewith, this Agreement will be governed by the Uniform Commercial Code of the State of Texas. To the extent that there is to be a delivery or performance of services under this Agreement, such services will be deemed "goods" within the definition of such Uniform Commercial Code except when deeming such services as "goods" would result in a clearly unreasonable interpretation.
7. LEGAL CONSTRUCTION. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained therein.
8. BINDING EFFECT. This Agreement shall inure to the benefit of and bind the parties hereto, their successors and assigns.
9. AUTHORITY. Each party signing this Agreement hereby warrants and represents that their respective signatures have been and are on the date of this Agreement duly authorized by all necessary and appropriate corporate action to execute this Agreement.
10. SECTION HEADINGS. All section headings contained herein are for convenience or reference only and are not intended to define or limit the scope of any provision of this Agreement.
11. EXPENSES FOR ENFORCEMENT. In the event either party hereto is required to employ an attorney to enforce the provisions of the Agreement or is required to commence legal proceedings to enforce the provisions hereof, the prevailing party shall be entitled to recover from the other, reasonable attorney’s fees and court costs incurred in connection with such enforcement, including, but not limited to, collection agency fees, attorney litigation fees, suit fees and costs of investigation and litigation.
12. FORCE MAJEURE. Neither party hereto shall be in default by reason of any failure of its performance under this Agreement if such failure results, whether directly or indirectly, from fire, explosion, strike, freight embargo, act of God, or of the public enemy, war, civil disturbance, act of any government, de jure or de facto, or agency or official thereof, labor shortage, transportation contingencies, unusually severe weather, default of manufacturer or a supplier or subcontractor, quarantine, restriction, epidemic. or catastrophe, lack of timely instructions or essential information from the other party.
13. SOLICITATION OF EMPLOYEES. CUSTOMER shall not, during the term of the Agreement, solicit for employment nor employ, whether as an employee or independent contractor, any person who is or has been employed by ALLIANT SYSTEMS during the term of this Agreement, unless CUSTOMER first obtains ALLIANT SYSTEMS’ written consent.
14. TAXES. CUSTOMER shall pay all taxes arising out of this Agreement, except for taxes based upon the net income of ALLIANT SYSTEMS.
15. MISSPELLINGS. Misspelling of one or more words in this Agreement shall not invalidate this Agreement. Such misspelled words shall be read so as to have the meaning apparently intended by the parties.
16. EFFECTIVE DATE. The effective date of the Agreement is the day on which the last of all required signatures is obtained. Terms of the Agreement will continue to be enforced for two years after termination of all licenses granted under this Agreement.
ARTICLE II - GENERAL TERMS
1. GENERAL TERMS. CUSTOMER desires to use certain computer software from ALLIANT SYSTEMS, (hereinafter referred to as the ALLIANT SYSTEMS Software), and will be Licensed to use ALLIANT SYSTEMS Software per the terms of this agreement.
2. HARDWARE. Computer Hardware sold to CUSTOMER by ALLIANT SYSTEMS will be paid for by CUSTOMER in advance, and will only carry hardware manufacturers warranty, if any is given by manufacturer. ALLIANT SYSTEMS does not warrant hardware nor offer refunds for returned hardware.
3. COMPUTER SOFTWARE. CUSTOMER and ALLIANT SYSTEMS shall agree to the terms and conditions for use of ALLIANT SYSTEMS Software in an addendum (Software Use Support Addendum) to this Agreement.
4. DELIVERY. Delivery shall occur F.O.B. at ALLIANT SYSTEMS’ or the manufacturer’s point of shipment. ALLIANT SYSTEMS shall prepay the shipping charges for the Hardware and Licensed Software and CUSTOMER agrees to reimburse ALLIANT SYSTEMS for such charges.
5. RISK OF LOSS. Risk of loss shall pass to CUSTOMER upon shipment.
6. TRAINING AND DOCUMENTATION. In accordance with its then current policies ALLIANT SYSTEMS shall provide its standard training and documentation for the operation and use of the ALLIANT SYSTEMS Software at ALLIANT SYSTEMS’ then standard hourly rates. CUSTOMER also agrees to pay for the following, if needed:
A. Copies of printed documentation.
B. Cost of media provided to CUSTOMER.
C. Shipping and handling charges for items sent to CUSTOMER or sent on CUSTOMER’s behalf.
D. Labor charges for use of ALLIANT SYSTEMS services beyond those provided in this Agreement.
E. All travel expenses including but not limited to transportation, lodging, and meals. This
includes travel to CUSTOMER location for purposes of support not able to be performed from
the ALLIANT SYSTEMS home office, in addition to training/consulting trips requested by CUSTOMER.
F. Labor charges for on-site services at CUSTOMER location, or additional services as requested by CUSTOMER.
7. SECURITY INTEREST. ALLIANT SYSTEMS shall retain a security interest in all hardware and in any proceeds for as long as CUSTOMER owes ALLIANT SYSTEMS any amounts for hardware under this Agreement. CUSTOMER agrees to execute such documents as may be necessary to perfect ALLIANT SYSTEMS’ security interest.
8. LIAISON BETWEEN ALLIANT SYSTEMS AND CUSTOMER. ALLIANT SYSTEMS and CUSTOMER shall designate the individuals who shall have the duty of acting as points of contact with personnel of ALLIANT SYSTEMS and CUSTOMER respectively.
9. LIMITATION OF LIABILITY. All warranties in the Agreement are subject to the following provisions.
A. IN NO EVENT SHALL ALLIANT SYSTEMS BE RESPONSIBLE FOR THE LOSS OR
DESTRUCTION OF DATA.
B. THE WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UNLESS
EXPRESSLY WARRANTED HEREIN, ALL GOODS PROVIDED BY ALLIANT SYSTEMS
PURSUANT TO THIS AGREEMENT ARE FURNISHED ON AN “AS IS” BASIS.
C. ALLIANT SYSTEMS SHALL NOT BE LIABLE FOR FAILURE TO PROVIDE, OR DELAYS
IN PROVIDING, SERVICES UNDER THIS AGREEMENT IF DUE TO ANY CAUSE
BEYOND ALLIANT SYSTEMS’ REASONABLE CONTROL.
D. ALLIANT SYSTEMS WILL USE REASONABLE CARE IN PROVIDING THE SERVICES
COVERED BY THIS AGREEMENT; PROVIDED, HOWEVER, ALLIANT SYSTEMS SHALL
NOT BE RESPONSIBLE FOR ANY FAILURE TO PROVIDE SUCH SERVICES WHEN
DUE TO CAUSES OR CONDITIONS BEYOND ITS CONTROL. IN ANY EVENT, ALLIANT
SYSTEMS’ LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE
AMOUNT PAID ALLIANT SYSTEMS BY CUSTOMER EXCEPT FOR LIABILITY FOR
PERSONAL INJURY OR LIABILITY ARISING OUT OF THE WILLFUL MISCONDUCT
OF ALLIANT SYSTEMS, ITS OFFICERS, EMPLOYEES OR AGENTS. IN NO EVENT SHALL
ALLIANT SYSTEMS BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES.
E. NO ACTION, REGARDLESS OF ITS FORM, ARISING OUT OF TRANSACTIONS
OCCURRING UNDER OR CONTEMPLATED BY THIS AGREEMENT, MAY BE
BROUGHT BY EITHER PARTY MORE THAN TWO YEARS AFTER THE CAUSE
10. TERMINATION. Licenses granted under this Agreement may be terminated in accordance with the following:
A. In the event of bankruptcy, insolvency, and/or an assignment for the benefit of creditors
by one party, shall give the right to the other party to terminate this Agreement for a
period of 120 days from date of notification by the defaulting party.
B. In the event CUSTOMER fails to perform in accordance with the terms and conditions
of this Agreement; is so notified by ALLIANT SYSTEMS; and fails to cure such failure within
30 days following notice, ALLIANT SYSTEMS may terminate licenses granted under this
Agreement and remove or disable the software for terminated licenses.
11. PROPERTY RIGHTS
A. ALLIANT SYSTEMS shall retain all copyright interests in the ALLIANT SYSTEMS software whether
published or unpublished.
B. All, if any, modifications made to the ALLIANT SYSTEMS software by ALLIANT SYSTEMS shall be
the exclusive property of ALLIANT SYSTEMS and such modifications shall be deemed to be
included within the definition of ALLIANT SYSTEMS software.
12. NON-DISCLOSURE. CUSTOMER agrees not to disclose the ALLIANT SYSTEMS Software. CUSTOMER further agrees that the ALLIANT SYSTEMS Software contains trade secrets of ALLIANT SYSTEMS, that CUSTOMER shall keep the ALLIANT SYSTEMS Software confidential, and that CUSTOMER shall not remove such proprietary notices as ALLIANT SYSTEMS may choose to place on the ALLIANT SYSTEMS Software.
A. CUSTOMER agrees to inform all of CUSTOMER’s employees who have access to ALLIANT
SYSTEMS Software as to the provisions of this Section.
B. CUSTOMER agrees to limit access to the ALLIANT SYSTEMS Software to those employees
who in the course of their employment need access to the ALLIANT SYSTEMS Software.
C. CUSTOMER agrees not to permit any independent contractor, including, but not limited
to consultants, any access to the ALLIANT SYSTEMS Software without such independent
contractor’s first executing ALLIANT SYSTEMS’ then standard non-disclosure agreement and
returning to ALLIANT SYSTEMS and executed copy. ALLIANT SYSTEMS shall provide
CUSTOMER a copy of such agreement upon request.
13. COVENANT NOT TO COMPETE. CUSTOMER agrees that for the term of this Agreement and for a period of two years following its termination, CUSTOMER shall not compete with ALLIANT SYSTEMS in the business of providing to others software that performs functions similar to the ALLIANT SYSTEMS Software.
- End of General Terms & Conditions -
SOFTWARE USE AND SUPPORT ADDENDUM
1. SUPPORTED SOFTWARE. ALLIANT SYSTEMS and CUSTOMER agree that ALLIANT SYSTEMS shall provide ALLIANT SYSTEMS Software and support for said software in accordance with the Purchase Agreement and this Addendum for the ALLIANT SYSTEMS Software as specified in Addendum A. The use of the ALLIANT SYSTEMS Software may be limited to a specific number of users, specific workstations, or specific computer; this limitation, if any, will be listed in Addendum A.
2. TERM. The Term of the Agreement shall begin as defined in the Purchase Agreement and last for an initial term (in months) as defined in the Purchase Agreement. When 4 months remain on the initial term, the term then changes to a rolling 4 month term, whereby payments made for one month’s service add one additional month to the ending date of the term, thereby providing a 4 month contract for both parties until one party wishes to cancel this Agreement according to the conditions set forth in this document. Should CUSTOMER wish to terminate the Agreement, written notice must accompany final payment of all outstanding amounts to be billed under this Addendum, whereby this Addendum will no longer automatically renew its term. If payment of all amounts due under this Addendum is not included with termination notice, CUSTOMER and ALLIANT SYSTEMS acknowledge that termination of the Agreement has not been initiated. Regardless of method of cancellation, the services provided under this Agreement will be provided until the last day of the Agreement as specified in this Addendum, as long as CUSTOMER’s account is in good standing.
3. SOFTWARE USE AND SUPPORT FEE. CUSTOMER agrees to pay ALLIANT SYSTEMS the fees specified in Addendum A for use of the ALLIANT SYSTEMS Software specified in Addendum A. Fees are billed monthly, one month in advance. ALLIANT SYSTEMS agrees not to increase the Unit Price of the fee for the initial term of the Agreement. After the initial term of the Agreement, ALLIANT SYSTEMS can adjust the Unit Price of the fee to CUSTOMER, by providing customer written notice with the normal invoice for services provided under this Addendum four months prior to the rate increase. Adjustments to the fees associated with the addition of products and/or system users will be accomplished by ALLIANT SYSTEMS furnishing an updated Addendum A at the time the additions are made.
4. LEASED SOFTWARE OWNERSHIP. CUSTOMER agrees that ALLIANT SYSTEMS claims exclusive ownership of the ALLIANT SYSTEMS Software, which CUSTOMER is using per the terms of this AGREEMENT.
5. SOFTWARE LICENSE. ALLIANT SYSTEMS hereby grants to CUSTOMER a non-exclusive and non-transferable license for the use and possession of the ALLIANT SYSTEMS software for as long as this Software Use and Support Addendum is in effect and the CUSTOMER’s account is in good standing. CUSTOMER has no license to use the ALLIANT SYSTEMS Software outside the scope of this Agreement.
A. CUSTOMER shall use the ALLIANT SYSTEMS Software only as specified in accordance with
Addendum A.
B. CUSTOMER agrees not to modify, reconstitute, de-compile, and/or disassemble the ALLIANT
SYSTEMS Software.
C. CUSTOMER shall not copy the ALLIANT SYSTEMS Software, except that CUSTOMER may make two
copies of the ALLIANT SYSTEMS Software for the sole purpose of backup.
D. CUSTOMER agrees that ALLIANT SYSTEMS may enter CUSTOMER’s business premises during regular business hours to determine CUSTOMER’s compliance with this Section.
6. TRANSFERS. This license is not transferable without the express written consent of ALLIANT SYSTEMS. CUSTOMER agrees that it shall neither attempt nor actually sell, give, lend, convey, transfer, license, provide, diminish, copy, nor in any other manner alienate any of its rights in the ALLIANT SYSTEMS Software, whether or not ever modified.
7. LIMITED WARRANTY. ALLIANT SYSTEMS makes the following limited warranty:
A. The ALLIANT SYSTEMS Software shall function in substantial accordance with its specifications for 60 days after the ALLIANT SYSTEMS Software is installed at the CUSTOMER location and CUSTOMER has gone LIVE with the software. The creation of invoices and delivery of those invoices initiates LIVE status. CUSTOMER agrees that the ALLIANT SYSTEMS Software is of such complexity that it may have defects, inherent, latent and/or manifest; and that, provided CUSTOMER is not in breach of any of the provisions in this Addendum, as ALLIANT SYSTEMS’ sole liability and CUSTOMER’s sole remedy, ALLIANT SYSTEMS shall provide shall provide the System Support Services described in Paragraph 10 of this Addendum.
nt that during the 60 day warranty period specified herein, the ALLIANT SYSTEMS Software provided fails of its essential purpose, then as an alternative sole and exclusive remedy, ALLIANT SYSTEMS shall pay to CUSTOMER a sum total equal to the fee paid by CUSTOMER for the ALLIANT SYSTEMS software for the following:
• The fee identified as the DOWN PAYMENT on the PURCHASE AGREEMENT
• All fees paid per the SOFTWARE USE AND SUPPORT ADDENDUM A.
• Fees paid for additional services including, but not limited to, custom programming services, conversion services, training and consulting services, and out-of-pocket expenses of Alliant personnel will not be reimbursed as part of the LIMITED WARRANTY.
8. LIMITATION OF LIABILITY.
A. EXCEPT FOR THE LIMITED WARRANTY SPECIFIED IN THE SECTION ENTITLED
“LIMITED WARRANTY”, ALLIANT SYSTEMS MAKES NO WARRANTIES CONCERNING THE
ALLIANT SYSTEMS SOFTWARE AND ALLIANT SYSTEMS PROVIDES SUCH SOFTWARE “AS IS”.
ALLIANT SYSTEMS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
B. ALLIANT SYSTEMS SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY
DAMAGES, INCLUDING, BUT NOT LIMITED TO, GENERAL, SPECIAL OR CONSEQUENTIAL
DAMAGES, LOST PROFITS OR LOST SAVINGS OCCURRING OUT OF OR IN CONNECTION
WITH THE DELIVERY, USE OR PERFORMANCE OF THE ALLIANT SYSTEMS SOFTWARE LICENSED UNDER THIS AGREEMENT.
9. SYSTEM SUPPORT SERVICES. For the duration of this agreement, provided CUSTOMER is not in breach of any of the provisions of this Addendum, ALLIANT SYSTEMS shall provide system support services for the ALLIANT SYSTEMS Software in accordance with the following:
A. Upon CUSTOMER’s informing ALLIANT SYSTEMS that the ALLIANT SYSTEMS Software fails to perform
in accordance with vendor Specifications, ALLIANT SYSTEMS shall provide reasonable programming
and systems analysis services to correct a verified programming or documentation error. For purposes
of this Addendum, a verifiable programming error is one which can be recreated by ALLIANT SYSTEMS
at ALLIANT SYSTEMS site using unaltered Licensed Software with data and input supplied by CUSTOMER.
ALLIANT SYSTEMS will make reasonable efforts to diagnose problems even if CUSTOMER is unable to
provide adequate data and input for duplicating the problem, however, absent such information from
CUSTOMER, ALLIANT SYSTEMS is relieved of any obligation relating to that programming error.
B. In order to answer CUSTOMER’s questions concerning the ALLIANT SYSTEMS Software, ALLIANT SYSTEMS
shall provide telephone consultation between 7:30 AM and 5:30 PM Central Time (Monday-Friday),
excluding ALLIANT SYSTEMS Holidays. Support provided outside the 7:30 AM and 5:30 PM time period
is considered “After Hours”. All After Hours support is billed at our published rate for “After Hours
Support”. Authorization is required for incurring After Hours charges.
C. Upon CUSTOMER’s request, ALLIANT SYSTEMS shall provide additional copies of the ALLIANT SYSTEMS
Software, provided ALLIANT SYSTEMS supplying and/or CUSTOMER’s possessing such copies does not
conflict with the provisions of this Agreement.
D. CUSTOMER agrees to pay ALLIANT SYSTEMS at ALLIANT SYSTEMS then standard rates for all services
requested by CUSTOMER that are not provided for as standard support in this Section. These items
may include, but are not limited to: Hardware support, equipment support, requested data manipulations,
report or query writing, extensive user training, etc…
10. MISCELLANEOUS. CUSTOMER further agrees as follows:
A. CUSTOMER shall provide a high-speed Internet connection where available (or a telephone
connection where high-speed internet connectivity is not available) and such communication
hardware and software as specified by ALLIANT SYSTEMS.
B. CUSTOMER shall make its computer hardware and software available to ALLIANT SYSTEMS at a
mutually agreeable time.
C. To adhere to the terms and conditions of all licenses for the ALLIANT SYSTEMS Software.
D. ALLIANT SYSTEMS is under no obligation to provide the services described herein if the ALLIANT
SYSTEMS Software has been modified by any party other than ALLIANT SYSTEMS prior to or
during the term of this Addendum, without ALLIANT SYSTEMS express, written consent.
11. UPDATES AND UPGRADES. For the duration of this agreement, provided CUSTOMER is not in breach of any of the provisions of this Addendum, ALLIANT SYSTEMS shall provide the CUSTOMER with the following updates and upgrades for the ALLIANT SYSTEMS Software in accordance with the following:
A. Updates. ALLIANT SYSTEMS shall provide CUSTOMER with access to all updates to the ALLIANT
SYSTEMS Software as the updates are made available. Software updates include known error
corrections, system utilities, and general enhancements to the existing ALLIANT SYSTEMS Software.
B. Upgrades. ALLIANT SYSTEMS shall provide CUSTOMER with access to upgrades to the ALLIANT
SYSTEMS Software as the upgrades are made available. Upgrades are defined as a product
release of similar design in which new application or database tools are utilized in the creation of
the product.
C. Updates and Upgrades, as defined in sections A and B are inclusive of ALLIANT SYSTEMS Software
and related documentation only. Additional software, equipment, installation, training, or consulting
services required by the update or upgrade are the responsibility of the CUSTOMER. Prior to release
of an update or upgrade requiring additional products or services, ALLIANT SYSTEMS Technical Support
staff will contact the CUSTOMER and provide the necessary information.
- End of Addendum -