PLEASE READ THIS LICENSE APPLICATION END USER AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING ANY PRODUCT OR SOLUTION (“SOFTWARE”) PROVIDED BY CASH FLOW MANAGEMENT, INC. (“CFM”, OR “LICENSOR”). FOR PURPOSES HEREIN, “LICENSEE” SHALL MEAN THE INDIVIDUAL ACCESSING THE SOFTWARE ON YOUR OWN OR ON BEHALF OF YOUR ORGANIZATION, INCLUDING COLLECTIVELY YOUR ORGANIZATION (“LICENSEE”). BY INSTALLING AND USING THE SOFTWARE, LICENSEE ACKNOWLEDGES BEING FULLY AUTHORIZED TO ENTER THIS LICENSE FOR AND ON BEHALF OF LICENSEE AND THAT LICENSEE HAS READ AND UNDERSTANDS AND AGREES TO BE BOUND BY THE TERMS OF THIS LICENSE. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL AND/OR USE THE SOFTWARE.
A. Licensor has developed and owns all right, title and interest in that certain software program used in connection with the operation of cash automation devices and more particularly described on Exhibit “B” attached hereto (the “Software”). For all purposes under this Agreement, the term “Software” shall include any copies thereof or derivatives created therefrom.
B. Licensee is a consumer financial institution and uses, or desires to use, cash automation devices to provide certain services to its customers (the “Licensee Services”).
C. Licensor is willing to grant to Licensee a license to use the Software and to provide technical support services for the Software, and Licensee is willing to accept such license and services on the terms and conditions set forth in this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
All of the foregoing Recitals are hereby incorporated as agreements of the Parties.
1.1. Subscription License. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee, for the term of this Agreement (the “Term”), a limited, revocable, worldwide, royalty-free, non-exclusive, non-transferable, non-sublicenseable license to use the Software consistent with this Agreement and any Documentation, and access and receive the Software Services, solely for purpose of providing the Licensee Services only to Licensee’s customers (the “License”). “Documentation” means any written materials in any form relating to the Software provided by Licensor to Licensee.
1.2. Number of Authorized Devices. The grant of the License extends only to, and the Software may concurrently be installed upon and used by, a number of cash automation or other devices not to exceed the number of authorized, concurrent devices set forth in Exhibit “B” attached hereto.
1.3. Improvements. If, at any time during the Term, Licensor delivers to Licensee one or more revisions, fixes, patches, modules, updates and upgrades to the Software (collectively, “Improvements”), upon such delivery, the respective Improvements shall be deemed part of the Software for all purposes hereunder including the grant of the License. Notwithstanding the foregoing, models and options designed to be sold separately in the market by Licensor are not included as part of any Improvements and Software Services.
1.4. No Implied License. Except for the express licenses and related rights granted herein to Licensee, no other licenses are granted by implication, estoppel or otherwise and all rights not specifically granted are reserved by Licensor. No license is granted by this Agreement to distribute the Software other than as expressly permitted pursuant to this Agreement.
2.1. Distribution Prohibited. Licensee shall not distribute or convey the Software to any third party.
2.2. Limited Access. Licensee shall not permit any third party to use, copy or access the Software, or any portion thereof, without the prior written consent of Licensor, which consent may be given or withheld in Licensor’s sole discretion.
2.3. Copyright Notices. Licensee shall ensure that all copies of the Software in Licensee’s possession or control incorporate copyright and other proprietary notices in the same manner that Licensor incorporates such notices in the Software or in any manner reasonably requested by Licensor. Licensee promptly shall notify Licensor in writing upon its discovery of any unauthorized use or copying of the Software or other infringement of Licensor’s proprietary rights in and to the Software.
2.4. Compliance with Laws. Licensee’s use of the Software shall comply in all respects with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities having jurisdiction over the Parties or the Software.
2.5. Compliance Audits. Throughout the Term, Licensor will have the right at its own expense and upon reasonable prior notice, to inspect Licensee’s facilities in order to evaluate Licensee’s use of the Software and for purposes of determining Licensee’s compliance with the provisions of this Agreement. Licensee agrees to provide reasonable cooperation to Licensor in connection with any such inspection.
3.1. Services. Immediately following the Warranty Period (as defined below) and until the end of the Subscription Support Period (as defined below), so long as Licensee is not in breach or default of this Agreement, Licensor shall provide to Licensee the technical support services set forth in Exhibit “C” attached hereto or as set forth in any addendum hereto or purchase order agreed to, in writing, by the Parties (the “Support Services”).
3.2. Subscription Support Period. The initial term during which Licensor will provide the Support Services (the “Subscription Support Period”) shall be as set forth in Exhibit “C” attached hereto. Upon expiration of such initial term, the Support Period will automatically renew for successive 1-year renewal terms unless and until terminated as provided in Section 3.4.
3.3. Licensee Responsibilities. Throughout the Support Period, Licensee shall: (i) cooperate with Licensor in investigating and seeking to identify the cause of any claimed failure of the Software to perform in accordance with this Agreement (an “Investigation”); (ii) allow such other remote and/or on-site access to the Software and to Licensee’s systems as may be reasonably required for Licensor to perform Support Services or to conduct an Investigation; and (iii) within a reasonable time after receiving such software, perform necessary installations or upgrades so that Licensee is running the most current version of the Software made available to Licensee. Licensor’s obligation to provide the Support Services shall not apply to the extent Licensee is not in full compliance with this Section 3.3 or if Licensee is in breach or default under this Agreement.
3.4. Support Services Termination and Reinstatement. Either Party may terminate Support Services as of the end of the initial term of the Support Period, or as of the end of any renewal term, by written notice to the other Party at least 90 days prior to the end of the applicable term. If the License is terminated for any reason, Support Services will terminate automatically. Neither of the termination or expiration of the Support Services, by itself, shall cause the termination of the License or this Agreement. If Licensor terminates Support Services in accordance with this Section 3.4, other than in the circumstance of a breach of this Agreement by Licensee, Licensee will be entitled to receive a pro-rata refund of any prepaid Support Services fees for any period beyond the effective date of such termination. If, at any time, Licensee does not renew Support Services, and later desires to reinstate Support Services, as a condition to such reinstatement Licensee will be required to pay all fees that Licensee would have come due had such Support Services not been terminated or allowed to expire.
4.1. Limited Warranty. Licensor hereby warrants to Licensee as follows: (i) for a period of ninety (90) days following initial delivery of the Software to Licensee (the “Warranty Period”), the Software will perform substantially in accordance with the documentation provided by Licensor with the Software; and (ii) to Licensor’s knowledge, neither the Software, as delivered by Licensor to Licensee, nor the authorized use by Licensee thereof, infringes the rights of any third party.
4.2. Limitations on Warranty. Notwithstanding the warranty provisions set forth above, all of Licensor’s obligations with respect to such warranties shall be contingent on Licensee’s use of the Software in accordance with this Agreement and in accordance with any and all documentation, training materials and any instructions provided by Licensor in furtherance of this Agreement; and Licensor shall have no warranty obligations with respect to any failures in the Software that are a result of accident, abuse, misapplication, modification by or for Licensee, or combination with other software not provided by Licensor.
4.3. Sole Remedy. Licensor’s entire liability and Licensee’s sole and exclusive remedy for a breach of the limited warranty set forth in Section 4.1 shall be at Licensor’s option: (a) to terminate this Agreement; or (b) repair or replacement of the Software (or any affected portion or component thereof); provided such remedies shall be available to Licensee only in the event Licensor receives written notice from Licensee during the Warranty Period of a breach of such warranty.
4.4. Infringement. In the event that the use of the Software by Licensee is enjoined, and/or the Software or any portion thereof is held to constitute an infringement, Licensor shall, at Licensor’s sole expense and within a reasonable time: (i) modify the infringing Software without impairing in any material respect the functionality or performance thereof, so that it is non-infringing; (ii) procure for Licensee the right to continue to use the infringing Software; or (iii) replace said Software with equally suitable, non-infringing software.
4.5. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4, LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO ANY ASPECT OF THE SOFTWARE, ITS OPERATION OR THE SERVICES TO BE PERFORMED BY LICENSOR HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DESIGN, CONDITION, QUIET ENJOYMENT, CAPACITY, PERFORMANCE, TITLE, ACCURACY OF DATA, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. THIS PARAGRAPH IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
5.1. Each Party agrees to and hereby does defend, indemnify and hold harmless the other Party and such other Party’s respective officers, directors, employees, shareholders, customers, agents, successors and assigns from and against any and all loss, damage, settlement, costs or expense (including reasonable legal expenses and reasonable expenses of other professionals), as incurred, resulting from, or arising out of or in connection with: (i) any third party claim alleging gross negligence or intentional misconduct by the indemnifying Party or its employees, contractors, officers, agents or representatives; or (ii) the breach or default of any of the indemnifying Party’s respective obligations hereunder.
5.2. As a condition to either Party’s indemnity obligations set forth in this Section 5, the indemnified Party will provide the indemnifying Party with prompt written notice of the claim and permit the indemnifying Party sole control over the defense, settlement, adjustment or compromise of any such claim. The indemnified Party may employ counsel at its own expense with respect to any such claim.
5.3. The provisions of this Section 5 and the indemnity obligations hereunder shall survive any termination or expiration of this Agreement and the License.
6.1. Confidentiality Obligations. Licensee shall: (i) hold in strict confidence and not disclose to any third party, any Confidential Information (as defined below) of Licensor, except as specifically approved in advance, in writing, by Licensor, which approval may be granted or withheld in Licensor’s sole discretion; (ii) protect such Licensor’s Confidential Information with at least the same degree of care that Licensee uses to protect its own highly confidential information; (iii) use Licensor’s Confidential Information for no purpose other than as specifically authorized under this Agreement; (iv) limit access to the Licensor’s Confidential Information to those Licensee’s employees or authorized representatives having a need to know who have signed confidentiality agreements substantively as protective of Licensor as this Agreement; and (v) immediately notify Licensor upon discovery of any loss or unauthorized disclosure of Licensor’s Confidential Information. Neither Party may communicate any information to the other Party in violation of the proprietary rights of any third party. Each Party shall obtain the other’s consent prior to any publication, presentation, public announcement or press release concerning the existence or terms and conditions of this Agreement.
6.2. Confidential Information. For the purposes of this Agreement, “Confidential Information” means: (i) any and all technical and non-technical information, including, without limitation, the source code and functionality of the Software; (ii) all other information that Licensee knew, or reasonably should have known, was the confidential information of Licensor; (iii) the terms and conditions and the existence of this Agreement; and (iv) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (v) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; and (vi) information regarding the skills and compensation of Licensor’s employees, contractors, and other agents.
6.3. Exclusions. Licensee has no obligations under this Agreement with respect to any portion of the Licensor’s Confidential Information if Licensee can demonstrate with competent evidence that such portion: (i) was in the public domain at the time it was communicated to Licensee by Licensor; (ii) entered the public domain through no fault of Licensee subsequent to the time it was communicated to Licensee by Licensor; or (iii) was in Licensee’s possession free of any obligation of confidence prior to the time it was communicated to Licensee by Licensor. Any provision herein to the contrary notwithstanding, Licensee may disclose Licensor’s Confidential Information, without violating the obligations of this Agreement, to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that Licensee gives Licensor reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist Licensor in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued.
6.4. Restrictions. Licensee will not reproduce the Licensor’s Confidential Information in any form except as required to exercise its rights under this Agreement. Any copy of any of Licensor’s Confidential Information remains the property of Licensor and will contain all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by Licensor.
6.5. Ongoing Obligations. Licensee’s obligations under this Section 6 will survive any termination or expiration of this Agreement and the License. All tangible information furnished hereunder by Licensor to Licensee shall remain the property of Licensor. Upon termination or expiration of this Agreement, or upon written request of Licensor, Licensee will: (i) cease any use of Licensor’s Confidential Information; and (ii) promptly return to Licensor all documents and other tangible materials containing any portion of, or summarizing, Licensor’s Confidential Information and all copies thereof. Upon Licensor’s reasonable request, an officer of Licensee will provide a certificate attesting to compliance with the foregoing.
7.1. Ownership of Licensor Software and Software Improvements. As between the Parties, Licensor will own all rights, title, and interest (including all intellectual property rights and moral rights and their equivalents) in and to the Software.
7.2. Support Documentation. Each Party agrees to take such action, and execute such documents as are requested by the other Party to affect the allocation of ownership rights and the licenses set forth in this Agreement, including providing documents in such recordable form as is deemed required or necessary by either Party.
EXCEPT FOR BREACHES OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT OR ANY MISUSE OF LICENSOR INTELLECTUAL PROPERTY, NEITHER PARTY SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (i) ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, Licensor SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AMOUNT RECEIVED BY Licensor FROM LICENSEE HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF MY LIMITED REMEDY PROVIDED HEREIN.
10.1. Term. Unless terminated earlier as provided herein, this Agreement shall continue from the Effective Date until terminated as provided for in this Agreement (the “Term”).
10.2. Termination for Cause. This Agreement has no stated term, but may be terminated by a Party for cause immediately upon the occurrence of and in accordance with the following:
10.2.1. Insolvency Event. Either may terminate this Agreement by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for either Party or its property; (ii) either makes a general assignment for the benefit of its creditors; (iii) either Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within 60 days; or (iv) either Party is liquidated or dissolved.
10.2.2. Default. Either Party may terminate this Agreement effective upon written notice to the other if the other Party breaches or violates any covenant, agreement, representation or warranty contained herein in any material respect or defaults or fails to perform any of its obligations or agreements hereunder in any material respect, which breach, violation, default or failure is not cured within 30 days after notice thereof from the non‑defaulting Party stating its intention to terminate this Agreement by reason thereof. Material breach, violation or default by Licensee will include but not be limited to, any of the following by Licensee or its contractor, agent, representative, affiliate or employee: (i) any attempt to reverse engineer or otherwise infringe Licensor’s proprietary rights; (ii) violation of the License grant or restrictions hereunder; (iii) any attempt to assign this Agreement; or (v) breach of confidentiality obligations hereunder; and (iv) misuse of the source code of the Software.
10.2.3. Notice by Licensor. Licensor may terminate this Agreement, for any reason or no reason, upon 30 days written notice to Licensee.
10.3. Return of Materials. Within 30 days after the termination or expiration of this Agreement, Licensee will return, or with Licensor’s written consent, destroy all copies of the Software, all documentation, Confidential Information, and other materials delivered or furnished by Licensor to Licensee and cease use of the Software. Licensee will not make or retain any copies of any Confidential Information delivered to it.
11.1. Force Majeure. Neither Party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that Party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties.
11.2.1. Licensee hereby acknowledges that the Software is subject to export or import controls under the laws and regulations of the U.S. Licensee shall comply with such laws and regulations, and agrees not to knowingly export, re-export, import or re-import or transfer the Software without first obtaining all required U.S. government authorizations or licenses. Licensor and Licensee each agrees, respectively, to provide the other Party such information and assistance as may be reasonably required by the other in connection with securing such authorizations or licenses, and to take timely action to obtain all required support documents.
11.2.2. Licensee agrees to maintain a record of exports, re-exports and transfers of the Software for five years and to forward within that time period any required records to Licensor or, at Licensor’s request, the U.S. Government. Licensee agrees to permit audits by Licensor or the U.S. Government as required under the applicable regulations to ensure compliance with this Agreement.
11.3. Relationship of Parties. The Parties are independent contractors under this Agreement and no other relationship is intended, including a partnership, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or other special relationship. Neither Party shall act in a manner which expresses or implies a relationship other than that of independent contractor. Neither Party shall have the right, power or authority to make any representation or warranty (whether express or implied), or to assume or create any obligation on behalf of the other Party, or to bind the other Party in any manner whatsoever.
11.4. No Third-Party Beneficiaries. Unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than Licensor and Licensee any rights, remedies or other benefits under this Agreement.
11.5. Equitable Relief. Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.
11.6. Notices. Any notice required or permitted to be given by either Party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight mail service (e.g., Federal Express), or by first class mail (certified or registered), or by facsimile confirmed by first class mail (registered or certified), to the other party. Notices will be deemed effective: (i) 3 working days after deposit, postage prepaid, if mailed; (ii) the next business day if sent by overnight mail; or (iii) the same day if sent by facsimile and confirmed as set forth above. A copy of any notice shall be sent to the following:
If to Licensor:
Cash Flow Management, Inc.
6950 West Morelos Pl., Suite 1
Chandler, AZ 85226
Fax: (602) 264-5633
11.7 . Assignment. Licensee may not assign its rights or delegate its obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of Licensor, which consent may be given or withheld in Licensor’s sole discretion. Any attempted assignment or delegation without Licensor’s written consent will be void ab initio. The rights and liabilities of the Parties under this Agreement will bind and inure to the benefit of the Parties’ respective successors and permitted assigns. For purposes of this Section 11.7, a 20% change in control of Licensee shall constitute an assignment. Licensor may assign this Agreement at any time to any successor to Licensor’s business or assets, whether by merger, sale of assets, sale of stock, reorganization or otherwise without the consent of, or notice to, Licensee.
11.8 . Waiver and Modification. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by the Party against whom such waiver is sought to be enforced. No modification or amendment of any provision of this Agreement shall be effective unless in writing and signed by both of the Parties.
11.9. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to give effect to the stated intentions of the Parties, or, if incapable of such enforcement, shall be deemed to be deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect.
11.10. Controlling Law and Jurisdiction. This Agreement and any action related thereto shall be governed, controlled, interpreted and defined by and under the laws of the State of Arizona and the United States, without regard to conflict of laws principles. In the event of litigation arising with respect to this Agreement, each of the Parties shall and hereby does submit itself to the sole and exclusive jurisdiction of, and agrees that proper venue shall be in, the Superior Court of Maricopa County, Arizona. The Parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
11.11. Headings. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.
11.12. Entire Agreement. This Agreement, including all exhibits which are incorporated herein by reference, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter.
11.13. Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and together which shall constitute one and the same instrument.
11.14. Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.