Performance Now license agreement
1. GRANT OF LICENSE
This Insperity Performance Management Software License Agreement (Agreement) is a license agreement and not an agreement for sale. Insperity Business Services, L.P., doing business as Insperity Performance Management (“Insperity”) hereby licenses to the purchaser of the enclosed software product (“Licensee”), a limited, non-exclusive, non-transferable, non-sub licensable license only to use the enclosed software product and any further tools and content, including without limitation, updates, made available to Licensee (at Insperity’s sole discretion) (collectively, “Software”) and all related documentation (whether enclosed with the Product or provided thereafter in Insperity’s sole discretion (collectively, “Documentation”). Insperity retains all rights not expressly granted to Licensee in this Agreement. Licensee, by its purchase and use of the Software and Documentation, hereby expressly agrees with the terms and conditions of this Agreement.
Licensee expressly acknowledges that all right, title and interest (including without limitation all intellectual property and all associated marks and logos) in and to the Software and Documentation and any reports, results or other information derived from use of the Software and Documentation are the sole and exclusive property of Insperity, its affiliates and licensors (collectively, “Insperity Parties”). Licensee agrees not to take any steps inconsistent with or to challenge or infringe the Insperity Parties’ rights in and to the Software and Documentation. Licensee also agrees to take all reasonable steps as may be requested by Insperity to assist the Insperity Parties in protecting and enforcing their rights in and to the Software and Documentation.
3. SCOPE OF RIGHTS; RESTRICTIONS ON USE
Notwithstanding anything to the contrary in this Agreement, Licensee’s licensed rights are limited by the following:
a. Unless separately agreed to by Insperity in writing to permit additional installations or Registered Users (as defined hereafter) of the Software, Licensee may install the Software onto one hard drive or other mass storage device of a computer owned or leased by Licensee and located at Licensee’s physical location and may have only one Registered User operate and use such Software on such computer. If a Licensee desires to install the Software on a computer at a location other than Licensee’s physical location the request must be made in writing and approved by Insperity in writing prior to such installation.
b. Licensee may use the Software only for its intended use that is directly related to the internal business operations of Licensee, and may not offer the benefits and services of the Software to third parties, whether such arrangement is in the nature of a service bureau or an outsourcing service, or another similar service or business. Use of the Software by or on behalf of another entity or employer other than the License is prohibited.
c. In addition to the copy made when installing and operating the Software asprovided under Section 3(a) above, Licensee may make one copy the Software only for backup or archival purposes, provided such copy contains all of the original copy’s proprietary notices and is kept in Licensee’s possession and control.
d. Only if Insperity separately agrees in writing to allow additional users (“Registered Users”) of the Software and subject to Licensee’s payment of related additional license fees, Licensee may make multiple copies of the Documentation which accompanies the Software, but only as necessary for Licensee’s permitted use of the Software. Licensee may not make more copies of the Documentation than the permitted number of Registered Users.
4. LICENSEE RESPONSIBILITIES
a. Licensee may not rent, lend, lease, grant a security interest in, sublicense or otherwise transfer rights in the Software or Documentation. The license and other rights granted in this Agreement are personal to Licensee, and Licensee agrees not to transfer, assign or sublicense such rights. Any attempted transfer, assignment or sublicense by Licensee will be null and void.
b. Licensee may not disassemble, decompile, or unlock, reverse translate, or in any manner decode, customize, or modify the Software for any reason.
c. Licensee agrees that its use of the Software and the Documentation will comply with all applicable laws and regulations, including without limitation the United States Export Administration Act and the rules and regulations thereunder. Notwithstanding anything to the contrary contained in this Agreement, Licensee expressly acknowledges that the Software and Documentation are intended for commercial use and only in the United States of America, and agrees that Insperity will bear no responsibility whatsoever for any unauthorized use or exportation of the Software or Documentation outside the United States of America or for any personal use of the Software or Documentation.
d. Licensee agrees to install the Software according to instructions provided in the Documentation or by an authorized Insperity representative.
e. Licensee agrees that its use of the Software and Documentation is subject to Insperity’s standard order, billing, and collection terms and conditions in effect at the time of Licensee’s order of the Software and Documentation, as applicable, which may be revised in Insperity’s sole discretion.
5. LIMITED WARRANTY
a. Insperity warrants that if the Software is provided via CD-ROM, the CD-ROM will be free from defects in materials and workmanship for a period of 60 days after the Effective Date. Should the Software fail to conform to this Section 5(a), Licensee’s sole remedy shall be replacement of the defective media at no charge to Licensee. Such remedy is available only if Licensee returns the defective item and a dated proof of purchase to Insperity within the 60-day warranty period.
b. Insperity warrants that, when installed and used in accordance with the Documentation, the Software will materially conform to the specifications set forth in the Documentation.
6. WARRANTY DISCLAIMER
a. THE SOFTWARE AND DOCUMENTATION ARE NOT A SUBSTITUTE FOR LEGAL OR OTHER PROFESSIONAL ADVICE. LICENSEE IS RESPONSIBLE FOR HAVING ANYAND ALL WORK PRODUCT CREATED USING THE SOFTWARE AND DOCUMENTATION REVIEWED AND APPROVED BYAN APPROPRIATE PROFESSIONAL.
b. LICENSEE ACKNOWLEDGES THAT INSPERITY IS NOT PROVIDING ANY LEGAL ADVICE AND USE OF THE SOFTWARE OR DOCUMENTATION DOES NOT ENSURE COMPLIANCE WITH ANY LOCAL, STATE OR FEDERAL GOVERNING EMPLOYMENT LAWS. LICENSEE SHOULD CONTACT THEIR HR ADVISOR OR ATTORNEY FOR ANY QUESTIONS REGARDING THE APPLICABILITY OF ANY POLICIES CONTAINED IN THE SOFTWARE OR DOCUMENTATION.
c. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND INSPERITY AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY AND ALLWARRANTIES, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, AS TO ANY ASPECT OF THE SOFTWARE OR DOCUMENTATION OR ANY RESULTS, REPORTS OR OTHER WORK PRODUCT OBTAINED THROUGH USE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES RELATING TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, INSPERITY MAKES NO WARRANTIES ABOUT THE QUALITY, PERFORMANCE, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE SOFTWARE OR DOCUMENTATION. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, INSPERITY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERRORFREE OR THAT THE SOFTWARE WILL BE FREE OF VIRUSES OR BUGS.
7. LIMITATION OF LIABILITY
THE INSPERITY PARTIES’ LIABILITY FOR ANY AND ALL LOSSES SUFFERED BY LICENSEE IN CONNECTION WITH THIS AGREEMENT OR AS A RESULT OF USE OF THE SOFTWARE OR DOCUMENTATION SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNT PAID BY LICENSEE TO INSPERITY FOR USE OF THE SOFTWARE. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (TORT, CONTRACT OR OTHERWISE) WILL ANY INSPERITY PARTY BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY GENERAL, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES OF ANY TYPE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOST DATA, COMPUTER FAILURE OR MALFUNCTION, THAT MAY RESULT FROM ANY USE OF OR RELIANCE UPON THE SOFTWARE OR DOCUMENTATION, EVEN IF INSPERITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Licensee shall defend, indemnify, save and hold harmless Insperity and its affiliates, and its and their officers, directors, agents and employees from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from Licensee’s use of the Software or Documentation, or any breach of Licensee’s duties, representations, or warranties contained in this Agreement.
9. TERM; TERMINATION
a. This Agreement and the licenses granted hereunder will be effective on the date of delivery of the enclosed software product to Licensee and will continue until terminated as provided in this Section 9. Either party may terminate this Agreement and the licenses granted hereunder at any time by written notice to the other party. If Licensee fails to comply with any of the terms and conditions of this Agreement, Insperity may terminate this Agreement and the licenses granted hereunder immediately with or without notice to Licensee. Notwithstanding the fore going, if Licensee fails to make timely payment of any applicable fees due under his Agreement, Insperity may terminate this Agreement and the licenses granted hereunder immediately without prejudice to its rights to collect any amounts due under this Agreement.
b. Upon any termination of this Agreement, all rights granted herein shall revert immediately to Insperity, and Licensee will make no further use of the Software and Documentation. Upon any termination of this Agreement, Licensee will destroy or permanently erase all copies of the Software and Documentation in its possession. Termination of this Agreement for any reason shall have no effect on Licensee’s obligation to pay any and all applicable fees and other amounts that may have accrued prior to the effective date of termination.
a. During the term of this Agreement and for a period of one year there after, Insperity may audit Licensee’s compliance with the terms of this Agreement at any time during business hours upon five business days advance notice.
b. This Agreement and Insperity’s rights and obligations hereunder may freely be assigned by Insperity. This Agreement and Licensee’s rights and obligations hereunder may not be assigned by Licensee without Insperity’s prior written consent.
c. This Agreement will be governed by and construed in accordance with the laws of the State of Texas (except for conflict of law rules), and the parties hereto submit irrevocably to the jurisdiction of the courts in Harris County, Texas, in connection with any dispute arising out of or relating to this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. If any action is necessary to enforce or interpret the terms of this Agreement, or any part thereof, the prevailing party shall be entitled to reason-able attorneys’ fees and costs in addition to any other relief to which such party maybe entitled.
d. Licensee acknowledges that any breach of Section 2 or any unauthorized use of the Software or Documentation would cause irreparable damage to Insperity for which it would not have an adequate remedy at law. Accordingly, the parties hereto agree that, in addition to all other remedies available to it, Insperity may seek injunctive relief for any such breach or violation of this Agreement.