The following terms and conditions of this Software License Agreement (“Agreement”) govern your use of software included with your purchase of a BACA Systems, LLC product or system. These terms and conditions incorporate by reference and supplement the Standard Terms and Conditions of Sale that govern your purchase of a BACA product or system; in the event of a conflict the terms and conditions of this Software License Agreement will govern and control.
1. License and Restrictions.
(a) BACA Systems, LLC (“BACA”) hereby grants to the undersigned (the “End User”), and the End User hereby accepts, a personal, nonexclusive, nontransferable license (the “License”) under BACA’s proprietary software products (the “Software”) and under all information contained in any related documentation, manuals or other materials related to the Software (hereafter collectively referred to as “Documentation”) to (i) use the Software with BACA products or systems that you have purchased or leased from BACA (hereafter “Products” and “Systems”) and for internal production operations of the End User and otherwise consistent with this Agreement (the “Permitted Use”), and (ii) use the Documentation in connection with the Permitted Use.
(b) The Software shall be used only in support of End User’s internal production operations, which shall include cutting and finishing stone countertops and similar surfaces for its customers and clients. End User shall not (i) permit any third party to use the Software, or (ii) distribute copies of the Software or Documentation to any third party. End User is responsible for maintaining internet connectivity necessary to enable BACA to deliver, monitor, and update Software, and End User is solely responsible for any loss or damages incurred due to its failure to maintain such connectivity.
(c) Neither this Agreement nor the License may be assigned or transferred and no sublicenses or similar rights in the Software or Documentation may be granted by End User.
(d) BACA retains all right, title and interest in the Software and Documentation and nothing contained herein shall be construed as the relinquishment on the part of BACA of any of BACA’s ownership interest in the Software or Documentation.
(e) End User shall not reverse engineer, decompile, disassemble, or otherwise attempt to gain access to or understanding of the architecture of or the object code or source code to the Software.
2. Term and Termination; Suspension.
(a) This Agreement and the License commence on BACA granting End User authorized access to the Software (the “Effective Date”) and shall be effective for so long as End User owns or leases its Products or Systems. For clarification, this Agreement and the License will immediately terminate upon End User no longer leasing, or End User transferring title to, the Products or Systems with which the Software is used.
(b) If either BACA or the End User discovers that the other party is in breach or default of this Agreement, then the non-breaching party shall deliver notice of such breach or default to the breaching party. The breaching party shall have thirty (30) days to cure such breach or default. If such breach or default is not cured within the thirty-day cure period, then the non-breaching party may terminate this Agreement and seek damages including legal and equitable relief.
(c) Upon termination of this Agreement due to a breach or default by the End User, the License shall immediately terminate, the End User shall cease using the Software, and BACA may remotely disable any further use of the Software.
(d) Notwithstanding a termination of this Agreement for any reason, Paragraphs 4, 5, and 7 shall survive the termination of this Agreement.
(e) If End User is (i) delinquent in the payment of any fees due under this Agreement, or under any other agreement or contract with BACA, or (ii) noncompliant with the requirements of any third party vendor of software that is used with the Software, BACA may in its sole discretion remotely access and disable the Software until such delinquency is cured. This remedy is in addition to, and not substitution of, other remedies available to BACA arising from the payment delinquency.
3. License Fees. The license fees applicable to your use of the Software are stated in your ordering documents for a Product, System, or Software and are otherwise available from BACA upon written request.
4. Warranties and Remedies. BACA warrants that the Software will perform materially as described in the Documentation for a period of 180 days following the Effective Date (the “Warranty Period”). If, during the Warranty Period any Software fails to comply with this warranty BACA shall, subject to End User’s promptly notifying BACA in writing of such failure, at its sole option, either: (i) repair or replace the Software, provided that End User provides BACA with all information BACA requests to resolve the reported failure, including sufficient information to enable the BACA to recreate such failure; or (ii) refund the fees paid for such Software, subject to End User’s ceasing all use of and, if requested by BACA, returning to BACA all copies of the Documentation. If BACA repairs or replaces the Software, the warranty will continue to run from the Effective Date and not from End User’s receipt of the repair or replacement. The remedies set forth in this Section 4 are End User’s sole remedies and BACA’s sole liability under the limited warranty set forth herein.
5. Disclaimer and Remedies.
(a) EXCEPT FOR THE EXPRESS WARRANTIES DESCRIBED HEREIN, THE SOFTWARE IS DELIVERED TO THE CUSTOMER “AS IS” AND WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET THE CUSTOMER’S REQUIREMENTS, OPERATE IN COMBINATIONS SELECTED BY THE CUSTOMER, PRODUCE RESULTS DESIRED BY THE CUSTOMER, OR OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.
(b) IN NO EVENT SHALL LICENSOR BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR RELIANCE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST OR ANTICIPATED REVENUES OR PROFITS) ARISING OUT OF THIS AGREEMENT OR THE CUSTOMER’S USE OF THE SOFTWARE, ON ANY THEORY OF LIABILITY EVEN IF LICENSOR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) BACA’s, maximum, aggregate liability under this Agreement shall be that set forth in BACA’s Standard Terms and Conditions of Sale.
(d) The End User’s remedies in this Agreement are exclusive.
6. Maintenance and Support.
End User will purchase annual maintenance and support services from BACA in accordance with the Software Support and Maintenance Agreement found here: bacasystems.com/Support-and-Maintenance-Agreement/.
7. Miscellaneous. In addition to the terms set forth in this Agreement, the terms and conditions of BACA’s Standard Terms and Conditions of Sale found here: bacasystems.com/standard-terms-of-sale/ are incorporated by reference into this Agreement.
