QSM CUSTOMER-HOSTED SOFTWARE LICENSE AGREEMENT

 

This is a legal agreement (“Agreement”) between Quantitative Software Management, Inc. (“QSM”) a Virginia corporation having offices at 2010 Corporate Ridge, Suite 500, McLean, VA 22102, and you, the party licensing software from QSM (“You”, “Your” or “Customer”). Read this Agreement carefully before using this Software. Your installation of this Software indicates Your acknowledgement that You have read and accept all of the terms and conditions of this Agreement. If You do not agree to any of the terms of this Agreement, then do not install or use this Software. Within 30 days either (a) return the unused media, if any, and all other items that are not part of the media package to QSM and/or (b) delete all QSM Products from any computers or other electronic media and send a letter to QSM certifying such destruction for a full refund of amounts paid. This Agreement includes the separate QSM-provided ordering documents under which You have ordered the Products (each such document being a “Purchase Order”).

SOFTWARE. As used in this Agreement, “Software” means any QSM-provided applications or firmware that has been provided to You for use pursuant to a Purchase Order. The “Software” consists of the object code version only of the full system, any module or subsystem, sample and utility computer programs provided on the electronic media in this package or downloaded by You from QSM. The term “Software” includes, without limitation, any patches, updates, improvements, additions, enhancements and other modifications or revised versions that may subsequently be provided to You by QSM from time to time.

PRODUCTS. As used in this Agreement, “Products” means the Software and all associated user manuals and user documentation (the “Related Materials”) provided to You for use with the Software. The term “Products” will include all enhanced versions of, and updates to the Related Materials which may subsequently be provided to You by QSM from time to time during the term of this Agreement. 

LICENSE. The Products are and will remain the property of QSM. QSM hereby grants You a nonexclusive, nontransferable, revocable license to use the Products as necessary for Your internal business purposes subject to the terms and conditions of this Agreement and any limitations specified in the Purchase Order for such Products or other agreement with QSM. Such internal business purposes do not include use by any parent, subsidiary, or affiliate of Yours, or any other third party, and You will not permit any such use. You may (i) only use the Software on one computer CPU at a time, and (ii) make one copy of the Software for backup purposes only. In the case of Software intended to be installed on a desktop, laptop or other single user device, You must purchase a single copy of the Software for each such desktop, laptop or other single user device on which you intend to have the Software operate, and You may make a backup copy of each instance of the Software. In the case of Software intended to be installed on a network and accessed by multiple users, this means that Your Purchase Order will specify the number of users who are permitted to use such Software, and your ability to copy the Software is limited to a single backup copy. Any copy of the Software that You make is the property of QSM and You agree to reproduce QSM’s copyright and other proprietary rights notices on any copy you make. You may copy or reproduce the Related Materials solely to the limited extent necessary for Your internal business purposes as they relate to Your use of the Software. Any copy of the Products that You make is the property of QSM and You agree to reproduce QSM’s copyright and other proprietary rights notices on any copy you make.  

ADDITIONAL RESTRICTIONS. Each user to whom You provide access to the Software must execute (via click-through) the End User Terms displayed by the Software (and provided in its current form as of the Effective Date in Appendix 1) prior to each instance of use of the Software. You may not take any action that would bypass the End User Terms screen or attempt in any way to circumvent the End User Terms screen. Sublicensing and rental of the Products is prohibited. You may not use the Products as part of a service bureau or for time-sharing purposes, or in any other way allow third parties to exploit the Software, including without limitation where the Products are used directly or indirectly (i) for the benefit of a third party or (ii) to compete with QSM. You may not: (i) use the Software on a network or other multiple-user environment unless you pay for and obtain a multiple-user license from QSM; (ii) decompile, disassemble, reverse-engineer otherwise attempt to derive, obtain or modify the source code of the Software; (iii) remove, modify, obscure or obliterate any copyright or other proprietary rights notice on the Products; (iv) modify, create derivative works from, distribute, publicly display, or publicly perform the Products. You acknowledge that copies of the Products are licensed, not sold, and You receive no ownership of any copy or of the Products themselves. Orders under this Agreement may only be placed for delivery and primary use within the region specified in the Purchase Order, if any. 

USER COUNT AND LICENSE VERIFICATION. On an annual basis, You will report to QSM the total number of users of the Software, the total number of copies of the Software installed, and the identity of any contractors, advisors and consultants that You have permitted to use the Software. On a semi-annual basis (or upon notice from QSM if QSM reasonably suspects a breach of this Agreement), QSM will have the right to audit Your use of the Software. You will provide reasonable cooperation with such audit, including providing access to personnel, computers on which the Software is installed and Your network.

RUNTIME-RESTRICTED SOFTWARE. The Software is “Runtime-Restricted Use” software. You may only use the software to run the Integrated Application. You may not use the software to develop new applications, databases or tables. You also may not use the Software with existing applications, databases or tables, other than those in the Integrated Application. You may, to configure or extend the Integrated Application, use a tool to run queries or reports from existing tables, or use a development environment or workbench that is part of the Integrated Application.

CONFIDENTIALITY AND NONDISCLOSURE. As used in this Agreement, “Confidential Information” means any and all information and material that: (i) gives QSM and/or its licensors some competitive business advantage or the opportunity of obtaining such advantage or is otherwise confidential or a trade secret; (ii) is marked “Confidential,” “Restricted,” or “Confidential Information” or other similar marking; (iii) is known by You to be confidential or proprietary; or (iv) from all the relevant circumstances, should reasonably be assumed by You to be confidential or proprietary. The Confidential Information includes the Products. Confidential Information does not include any information that You can prove: (i) was already known to You without restrictions at the time of its disclosure by QSM; (ii) after its disclosure by QSM, is made known to You without restrictions by a third party having the right to do so; (iii) is or becomes publicly known without violation of this Agreement; or (iv) is independently developed by You without reference to the Confidential Information. Confidential Information will remain the property of QSM and/or its licensors, and You will not be deemed by virtue of this Agreement or any access to the Confidential Information to have acquired any right, title or interest in or to the Confidential Information. You may not copy any Confidential Information without QSM’s prior written permission. You may not remove any copyright, trademark, proprietary rights or other notices included in or affixed to any Confidential Information. You agree: (i) to hold the Confidential Information in strict confidence; (ii) to limit disclosure of the Confidential Information to employees, contractors, advisors or consultants having a need to know the Confidential Information for the purposes of this Agreement, provided that You (a) ensure that such individuals are required to protect the Confidential Information on terms consistent with this Agreement; and (b) accept responsibility for each such individual's use of Confidential Information; (iii) not to disclose any Confidential Information to any third party; (iv) to use the Confidential Information solely and exclusively in accordance with the terms of this Agreement in order to carry out Your obligations and exercise Your rights under this Agreement; (v) to afford the Confidential Information at least the same level of protection against unauthorized disclosure or use as You normally use to protect Your own information of a similar character, but in no event less than reasonable care; and (vi) to notify QSM promptly of any unauthorized use or disclosure of the Confidential Information and to cooperate with and assist QSM in every reasonable way to stop or minimize such unauthorized use or disclosure. You agree that upon reasonable request from QSM You will cause any such contractors, advisors or consultants to execute a non-disclosure agreement directly with QSM that is substantially similar to the confidentiality requirements of this Agreement. QSM will have the right, in its sole discretion, to refuse access to Confidential Information by any contractor, advisor or third party. You agree that if a court of competent jurisdiction determines that You, or any person granted access to the Confidential Information by You, have breached, or attempted or threatened to breach, Your confidentiality obligations to QSM or QSM’s proprietary rights, money damages, QSM and/or its licensors will suffer irreparable harm and that monetary damages will be inadequate to compensate for such breach. Accordingly, QSM, in addition to and not in limitation of any other rights, remedies or damages available to it at law or in equity, will be entitled to seek appropriate injunctive relief and other measures restraining further attempted or threatened breaches of such obligations without requirement to post any bond. You may not use the Confidential Information for your own or any third party’s benefit, competitive development or any other purpose, except as specifically authorized in this Agreement. 

DEFAULT. In the event You breach any of Your obligations under this Agreement, or any user permitted access to the Products breaches the End User Terms, QSM may immediately, without further notice, terminate the license granted to You and require that you immediately destroy all copies in Your possession of the Products and certify such destruction to QSM. 

MUTUAL WARRANTY. Each party represents and warrants to the other, as of the date that You first receive the Software, that (i) such party has the full right, power and authority to enter into this Agreement; (ii) the execution, delivery and performance by such party of this Agreement are within its powers and have been duly authorized by all necessary action; and (iii) when executed and delivered by it, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms. 

LIMITED WARRANTY. QSM warrants to You that, for a period of 90 days from the date of original receipt, (I) the Software will not, under normal use and service, deviate materially from the applicable specifications contained in the Related Materials, and (ii) the Related Materials will be free from defect in materials and workmanship. If any such deviation appears during such 90 day period in the Products, QSM will use commercially reasonable efforts to correct such deviation in a manner consistent with the support services that QSM provides for the Products. If, despite such commercially reasonable efforts QSM is unable to correct such deviation, such items may be returned to QSM for replacement, without charge. With regard to material defects in the Related Materials, such items may be returned to QSM for replacement, without charge. This warranty does not cover defects arising from modifications or misuse of the Products. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE AND RELATED MATERIALS ARE PROVIDED “AS IS” AND NO OTHER WARRANTIES ARE PROVIDED BY QSM WITH RESPECT TO THE PRODUCTS WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, INTEGRATION, PERFORMANCE, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. EXCEPT AS SPECIFIED IN THIS LIMITED WARRANTY, QSM MAKES NO WARRANTY THAT ANY LICENSED MATERIALS WILL OPERATE ERROR-FREE, FREE OF ANY SECURITY DEFECTS OR IN AN UNINTERRUPTED MANNER, THAT THE SOFTWARE WILL OPERATE IN COMBINATION WITH OTHER THIRD PARTY SOFTWARE OR HARDWARE SELECTED BY YOU OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. NO ADVICE OR INFORMATION PROVIDED BY QSM WILL CREATE A WARRANTY. YOU ASSUME TOTAL RESPONSIBILITY FOR ANY AND ALL RISK ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE OR ANY RELATED MATERIALS. 

LIABILITY. QSM’S OBLIGATION TO USE COMMERCIALLY REASONABLE EFFORTS TO REPAIR OR TO REPLACE THE DEFECTIVE PRODUCTS, AS PROVIDED ABOVE, IS YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS AGAINST QSM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR RELATING TO ANY PRODUCT, WHETHER MADE OR SUFFERED BY YOU OR ANY OTHER PERSON OR PARTY AND WHETHER BASED IN CONTRACT OR TORT OR OTHERWISE, IN NO EVENT WILL QSM BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITVE, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, ANY DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOST REVENUE, LOST SAVINGS OR LOSS OF BUSINESS), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE OF THE SOFTWARE OR QSM’S PERFORMANCE OF SERVICES OR OF ANY OTHER OBLIGATIONS RELATING TO THIS AGREEMENT, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL

THE LIABILITY OF QSM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR INABILITY TO USE ANY PRODUCT EXCEED THE AMOUNT YOU PAID TO LICENSE THE SOFTWARE.

INDEMNITY BY QSM. QSM agrees to defend any claim against You alleging that any Product infringes any United States patent or copyright, and to pay any final judgment rendered on such claim, provided You give QSM prompt notice of the claim, allow QSM sole control of the defense or settlement of the claim, and fully cooperate with QSM in such defense or settlement. The foregoing obligations will not apply to claims related to or arising from (i) modifications to a Product made other than by or for QSM, (ii) use of a Product other than as intended by QSM, or (iii) any combination of a Product any product, service or software not supplied by QSM. If a Product becomes, or in QSM’s opinion is likely to become, the subject of an infringement claim, QSM may, at its option: (i) obtain for You the right to continue using the Product; (ii) modify the Product in order to avoid the claim of infringement; or (iii) if in QSM’s opinion neither (i) nor (ii) is commercially reasonable, terminate this Agreement with respect to the allegedly infringing Product and refund to You an amount equal to the then-current depreciated value of the allegedly infringing Product. This section states QSM’s sole liability and Your sole remedy for any damages arising in connection with any claim of infringement or misappropriation by any QSM-provided Product of any third party intellectual property rights. 

TAXES. Except as otherwise stated in a Purchase Order, the Fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, excise, use or withholding taxes (collectively, "Taxes"). You are responsible for paying all Taxes associated with the Software and this Agreement, excluding U.S. income taxes on QSM. If You have an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), You will gross up the payments so that QSM receives the amount actually quoted and invoiced. If QSM has a legal obligation to pay or collect Taxes for which You are responsible under this section, the appropriate amount shall be invoiced to and paid by You, unless You provide QSM with a valid tax exemption certificate authorized by the appropriate taxing authority. 

EXPORT OF PRODUCTS. You agree that you will not, directly or indirectly, export or reexport, or knowingly permit the export or reexport of, the Products, or any technical information about the Products, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar U.S. law or regulation, requires an export license or other U.S. Government approval, unless the appropriate export license or approval has been obtained. In the event of a breach of this provision, You agree to indemnify, defend and hold QSM harmless from any claim, action or fine by the U.S. government.

NOTICES. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after first class mailing; or (iii) the second business day after sending by facsimile with telephonic confirmation of receipt. Notices to QSM shall be addressed to the attention of its Co-Chief Executive Officer, with a copy to its Vice President, Sales, at the address specified in the first paragraph of this Agreement. Notices to Customer shall be addressed to the individual named on the applicable Purchase Order at the address specified on such Purchase Order.

MISCELLANEOUS. In the event of the partial or complete invalidity of any clause of this Agreement, such clause will be deemed to be restated to reflect, as nearly as possible under applicable law, the original intentions of the parties, and the remainder of this Agreement will continue in full force and effect. Without limiting the foregoing, it is expressly understood and agreed that each and every provision of this Agreement that provides for a limitation of liability, disclaimer of warranties or exclusion of damages is intended by the parties to be severable and independent of any other provision and to be enforced as such. Further, it is expressly understood and agreed that in the event any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth herein will remain in full force and effect. This Agreement constitutes the entire agreement and understanding between us and supersedes any proposal, prior agreement, or any other communication between us, oral or written, relating to the subject matter of this Agreement. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right or any other right.

Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. This Agreement will be governed by the laws of the Commonwealth of Virginia, without regard to its choice of law rules. Any action to enforce this Agreement (including any other agreement incorporating these terms) must be brought in the Commonwealth of Virginia. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You may not assign or transfer this Agreement.

ELECTRONIC COMMUNICATION. When You use the QSM web site or send e-mails to QSM, You are communicating with QSM electronically. You consent to receive communications from QSM electronically. QSM will communicate with You by e-mail or posting notices on the QSM web site. You agree that all agreements, notices, disclosures and other communications that QSM provides to You electronically satisfy any legal requirement that such communications be in writing.

U.S. GOVERNMENT USE. The Products, including related commercial software and technology installed on the hardware of, and/or documentation and technical data, delivered to the United States (“U.S.”) Federal government end users, is "commercial computer software" and “commercial technical data” pursuant to the applicable Federal Acquisition Regulation (“FAR”) and agency supplemental regulations, including the Defense of Defense FAR Supplement (“DFARS”). Where the Products are being delivered to the U.S. Government under a U.S. Government contract or subcontract, use, reproduction and disclosure of the Products by the U.S. Government will be subject to this Agreement. The customary commercial license contained in this Agreement is provided in accordance with FAR § 12.211 (Technical Data) and FAR § 12.212 (Software) and, for Department of Defense transactions, DFARS § 227.7102-1 (Technical Data), DFARS § 252.227-7015 (Technical Data – Commercial Items) and DFARS § 227.7202.3 (Rights in Commercial Computer Software or Computer Software Related Materials). If a government agency has a “need for” or otherwise additional right not conveyed under these terms, it must negotiate with QSM to determine whether there are acceptable terms for transferring additional rights. A mutually acceptable addendum specifically conveying such rights must be executed by the parties in order to convey such rights beyond those set forth herein. For purposes of the FAR, the Products will be deemed to be “unpublished” and licensed with disclosure prohibitions.

APPENDIX 1

END USER TERMS 

These End User Terms are a part of the Agreement between QSM and the entity that has installed this Software on a computer (“Customer”). These End User Terms specify obligations with which an end user must comply as a condition for Customer to retain its license to use the Products. By clicking through these End User Terms, you acknowledge that (a) you agree to comply with all terms provided in these End User Terms and (b) breach of these End User Terms may result in termination of Company’s license to use the Products. You must accept these End User Terms prior to each instance of use of the Software. You may not take any action that would bypass the End User Terms screen or attempt in any way to circumvent the End User Terms screen. Any other applicable terms in the Agreement not specified herein which may apply to you are incorporated by reference.

SOFTWARE. As used in these End User Terms, “Software” means any QSM-provided applications or firmware that has been provided to Customer and to which Customer wishes to permit you to use. The “Software” consists of the object code versions of the full system, sample and utility computer programs provided on the electronic media in this package or downloaded by Customer from QSM. The term “Software” includes, without limitation, any patches, updates, improvements, additions, enhancements and other modifications or revised versions that may subsequently be provided to Customer by QSM from time to time.

PRODUCTS. As used in these End User Terms, “Products” means the Software and all associated user manuals and user documentation (the “Related Materials”) provided to Customer for use with the Software and that Customer wishes to permit you to use. The term “Products” will include all enhanced versions of, and updates to the Related Materials which may subsequently be provided to Customer by QSM from time to time.

 LICENSE. The Products are and will remain the property of QSM. Subject to the Agreement between QSM and Customer, QSM hereby grants you a nonexclusive, nontransferable, revocable license to use the Products on an as necessary for Your internal business purposes subject to the terms and conditions of the Agreement. Such internal business purposes do not include use by any parent, subsidiary, or affiliate of Yours, or any other third party, and You will not permit any such use. You may copy or reproduce the Related Materials solely to the limited extent necessary for Your internal business purposes as they relate to your use of the Software. Any copy of the Products that you make is the property of QSM and you agree to reproduce QSM’s copyright and other proprietary rights notices on any copy you make. 

ADDITIONAL RESTRICTIONS. Each user to whom You provide access to the Software must execute (via click-through) the End User Terms displayed by the Software (and provided in its current form as of the Effective Date in Appendix 1) prior to each instance of use of the Software. You may not take any action that would bypass the End User Terms screen or attempt in any way to circumvent the End User Terms screen. Sublicensing and rental of the Products is prohibited. You may not use the Products as part of a service bureau or for time-sharing purposes, or in any other way allow third parties to exploit the Software, including without limitation where the Products are used directly or indirectly (i) for the benefit of a third party or (ii) to compete with QSM. You may not: (i) use the Software on a network or other multiple-user environment unless you pay for and obtain a multiple-user license from QSM; (ii) decompile, disassemble, reverse-engineer otherwise attempt to derive, obtain or modify the source code of the Software; (iii) remove, modify, obscure or obliterate any copyright or other proprietary rights notice on the Products; (iv) modify, create derivative works from, distribute, publicly display, or publicly perform the Products. You acknowledge that copies of the Products are licensed, not sold, and You receive no ownership of any copy or of the Products themselves. Orders under this Agreement may only be placed for delivery and primary use within the region specified in the Purchase Order, if any. 

CONFIDENTIALITY AND NONDISCLOSURE. As used in these End User Terms, “Confidential Information” means any and all information and material that: (i) gives QSM and/or its licensors some competitive business advantage or the opportunity of obtaining such advantage or is otherwise confidential or a trade secret; (ii) is marked “Confidential,” “Restricted,” or “Confidential Information” or other similar marking; (iii) is known by you or Customer to be confidential or proprietary; or (iv) from all the relevant circumstances, should reasonably be assumed by you or Customer to be confidential or proprietary. The Confidential Information includes the Products. Confidential Information will remain the property of QSM and/or its licensors, and you will not be deemed by virtue of the Agreement, these End User Terms or any access to the Confidential Information to have acquired any right, title or interest in or to the Confidential Information. Except as permitted by the Agreement, You may not copy any Confidential Information without QSM’s prior written permission. You may not remove any copyright, trademark, proprietary rights or other notices included in or affixed to any Confidential Information. You agree: (i) to hold the Confidential Information in strict confidence; (ii) to limit disclosure of the Confidential Information to Customer’s employees having a need to know the Confidential Information for the purposes of the Agreement; (iii) not to disclose any Confidential Information to any third party; (iv) to use the Confidential Information solely and exclusively in accordance with the terms of the Agreement in order to carry out Customer’s obligations and exercise Customer’s rights under the Agreement; (v) to afford the Confidential Information at least the same level of protection against unauthorized disclosure or use as Customer normally uses to protect its own information of a similar character, but in no event less than reasonable care; and (vi) to notify QSM promptly of any unauthorized use or disclosure of the Confidential Information and to cooperate with and assist QSM in every reasonable way to stop or minimize such unauthorized use or disclosure. You may not use the Confidential Information for your own or any third party’s benefit, competitive development or any other purpose, except as specifically authorized in the Agreement.

 EXPORT OF PRODUCTS. You agree that you will not, directly or indirectly, export or reexport, or knowingly permit the export or reexport of, the Products, or any technical information about the Products, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar U.S. law or regulation, requires an export license or other U.S. Government approval, unless the appropriate export license or approval has been obtained. In the event of a breach of this provision, You agree to indemnify, defend and hold QSM harmless from any claim, action or fine by the U.S. government.