Customer Agreement

Electronic Signature. WARNING. READ THE FOLLOWING SOFTIRON INC. EQUIPMENT SALE, LICENSE AND SERVICE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE CLICKING “I AGREE.” BY ENTERING YOUR [USER NAME AND PASSWORD/INITIALS] AND CLICKING ON “I AGREE” AND COMPLETING YOUR ORDER OF PRODUCTS AND SERVICES FROM OUR WEBSITE [(US WEBSITE), THE “SITE”)], YOU AGREE THAT SUCH ACTION(S) CONSTITUTES A “SIGNATURE” THAT IS A LEGALLY BINDING EQUIVALENT TO A HANDWRITTEN SIGNATURE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT ON BEHALF OF THE SUBSCRIBER NAMED IN THE ONLINE PURCHASE ORDER YOU ARE IN THE PROCESS OF COMPLETING (THE “PURCHASE ORDER”) AND TO WHICH THIS AGREEMENT APPLIES (THE “SUBSCRIBER”) AND THAT SUBSCRIBER AGREES TO AND SHALL ABIDE BY THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT SUBSCRIBER has granted you individually the authority to access this web site and perform on Subscriber’s behalf the activities that you carry out via the Site, including the purchase of the products and services described in the Purchase Order. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK “I AGREE” AND YOU WILL NOT BE PERMITTED TO CONTINUE WITH YOUR ORDER.

SoftIron Inc.

Equipment Sale, License and Service Agreement

  1. Definitions

The following definitions are used in this Agreement:

  • “Annual Fee” shall refer to the total amount specified on the applicable Purchase Order or web site order payable by Subscriber, in advance for Support, for SoftIron Hardware Care..
  • “Confidential Information” is defined in Section 13.1.
  • “SoftIron” shall refer to SoftIron Inc.
  • “Documentation” shall refer to user documentation provided by SoftIron to Subscriber in connection with the Software, which may be provided as printed material or CD-Rom media.
  • “Enhancements” shall refer to modifications and upgrades made to the Software or System that add program features or functions not originally within the Software, which do not constitute an Update, and that are generally provided upon payment of additional license fees. SoftIron reserves the right to define which changes are Updates or separately priced Enhancements.
  • “Equipment” shall refer to the computer machinery equipment, devices, parts, supplies and accessories of the System, exclusive of the manufacturer-supplied operating system software.
  • “Fees” shall refer to the Fees specified on the applicable Purchase Order payable by Subscriber for Use of the Software, purchase of the Equipment, Training, Installation assistance, Support, Updates and Special Maintenance Services, if any, during the term of this Agreement.  Any Fees for Enhancements to the Software or Professional Services are excluded from this Agreement unless agreed to by the parties in a separate Order Schedule.
  • “Functional Specifications” is defined in Section 4.4.
  • “Installation” shall refer to the installation of the System as provided in this Agreement.
  • “Delivery Date” shall refer to the date the System is shipped to Subscriber.
  • “Delivery Method” shall refer to the method of shipping selected by Subscriber in the Purchase Order.
  • “Locations” shall refer to the business locations of Subscriber identified on the applicable Purchase Order where the Installations shall occur, as may be changed upon notice to SoftIron as provided in Section 2.2.
  • “Order Schedule” shall refer to the standard printed SoftIron form by which Subscriber orders Professional Services, Enhancements and other services not available through the online Purchase Order form and that will be signed by both parties.
  • “Purchase Order” shall refer to the online Purchase Order form to which this Agreement pertains by which Subscriber is ordering products and services from SoftIron, including Software, Equipment, Installation assistance, Support, Training, Third Party Software, or any other services.
  • “Professional Services” shall refer to services provided by SoftIron pursuant to any Order Schedule, including without limitation, custom programming, special training, moving Equipment, and any other services not specifically covered under this Agreement.
  • “Professional Service Fees” shall refer to any services rendered based on any special modification over and above what is usual, customary, and reasonable, in the natural implementation of the services agreed to by the parties in a separate Order Schedule.
  • “Software” shall refer to the standard, unmodified computer programs in object code and procedure statements in machine readable form, together with all Updates, and Enhancements, if any, and one set of Documentation that is being licensed to Subscriber, as listed on the applicable Purchase Order or Order Schedule.
  • “Special Maintenance Services” shall refer to other maintenance services, if any, as specified on the applicable Purchase Order.  SoftIron shall have no maintenance responsibility with respect to Enhancements to the Software unless otherwise identified as part of Special Maintenance Services.
  • “Support” shall refer to the support and maintenance services made generally available by SoftIron for the System as provided in this Agreement.  Basic Support with respect to Software shall only be available with respect to the current and last prior release of the Software.
  • “System” shall refer to the Software licensed and the Equipment purchased pursuant to this Agreement.
  • “Taxes” shall refer to all value-added, sales, use, property and similar taxes, and all other mandatory payments to government agencies of whatever kind imposed with respect to products or services provided by SoftIron under this Agreement or with respect to transactions under this Agreement, except taxes imposed on the net income of SoftIron.
  • “Term” is defined in Section 6.1.
  • “Third Party” shall refer to any party other than SoftIron’s employees or subcontractors and Subscriber.
  • “Third Party Software” shall refer to software programs that are not owned by SoftIron but which SoftIron, as a dealer, remarketer or redistributor of such software, may supply to Subscriber.  The Third Party software may include operating system software provided in conjunction with the Equipment by the manufacturer (such as special scanner drivers and character recognition software), and stand alone software applications unrelated to the System as listed on the applicable Purchase Order.
  • “Training” shall refer to the training courses made generally available by SoftIron for System as set forth in the Purchase Order.
  • “Updates” shall refer to changes made to maintain compatibility with new system Software releases or to improve existing features and operations within the Software, beyond routine program fixes.  Updates are provided to Subscriber upon payment of the Annual Fees described on the applicable Purchase Order. Updates will not include any Enhancements or release, option or future product that SoftIron separately licenses.
  • “Use” shall refer to copying or loading any portion of the Software from storage units or media into a personal computer for the processing of data by the Software, or the operation of any procedure or machine instruction utilizing any portion of either the computer program or instructional material supplied with the Software.  Use shall be limited to the specific function as described herein, and for its intended purpose.
  1. License to Use the Software and System
  • In consideration for the Fees set forth on the applicable Purchase Order, SoftIron agrees to furnish the Software and System to Subscriber and hereby grants to Subscriber (i) a non-exclusive, nontransferable, non-sublicenseable license to Use the Software at the Locations in Subscriber’s own business operations, for the term specified in Section 6; and (ii) a non-exclusive sublicense to use (in accordance with the terms provided by the owner thereof) the Third Party Software, including stand alone Third Party Software unrelated to the System if specified on a Purchase Order.
  • Subscriber may change the Locations in the event Subscriber transfers its data processing department to a new location, provided that Subscriber provides SoftIron with reasonable advance written notice of any proposed transfer of operations.
  • Subscriber shall not copy any portions of the Software except that Subscriber may copy reasonable quantities of any Documentation for use by Subscriber at the Locations for archive, back-up, or emergency restart purposes, or to replace a copy made on defective media. Subscriber may not disclose any benchmarking or performance testing results related to the System to any third party. Subscriber shall treat such benchmarking or performance testing results as Confidential Information (as defined below).
  • Subscriber shall reproduce and include SoftIron’s copyright and other proprietary notices on all copies, in whole or in part, in any form, of the Software made in accordance with this Clause.
  • Subscriber may not relicense, sublicense, rent or lease the Software or use the Software or the System outside of the intended purpose, unless expressly permitted by this Agreement. Subscriber shall not, and shall not allow any third party to, decompile, disassemble, or otherwise reverse engineer the Software or the System.
  1. Installation
    • All Installation will be done by Subscriber with SoftIron providing Installation assistance over the telephone. Installation assistance will be provided under SoftIron’s standard installation procedures for Systems in effect on the date of this Agreement and will use its best efforts to assist Subscriber in completing such Installation as soon as practicable after the Delivery Date. Any installation services required by Subscriber beyond these standard installation procedures must be provided pursuant to and as described and priced on a Purchase Order.  In the event that there are delays, SoftIron will use its best effort to assist Subscriber in completing the Installation as soon as practicable. Installation assistance will be available during normal SoftIron business hours, Monday through Friday, exclusive of SoftIron holidays, unless otherwise agreed by SoftIron. Subscriber shall provide a suitable installation environment for the System as specified by SoftIron or its agents and any and all other specifications provided to Subscriber by the manufacturer, supplier, or SoftIron.
  1. Services and Support
  • In consideration of the Annual Fee specified on the applicable Purchase Order, SoftIron will provide the following Support to Subscriber in accordance with the terms specified:
  • Telephone support during SoftIron’s normal business hours as provided in the Purchase Order. If Subscriber the number of telephone support hours designated on the Purchase Order, Subscriber will be contacted and invoiced for hourly support at SoftIron’s then current rates.
  • Software Updates to correct any deficiencies for the current release, which may include modifications, additions or work-arounds, will be provided within a reasonable period of time upon notice by Subscriber.  Subscriber agrees to provide SoftIron with reasonable assistance and information in connection therewith.
  • SoftIron may bill Subscriber for changes to the Software necessitated by changes in laws, rules or regulations applicable the Software. If such changes require Subscriber to upgrade to SoftIron’s current Software release, Subscriber shall be billed for such current release at SoftIron’s current retail rates.
  • Special Maintenance Services, if selected by Subscriber, shall be designated on a Purchase Order.
  • SoftIron will provide Subscriber with Enhancements and other additional Professional Services at the rates identified in the Professional Services Fees on an Order Schedule, if applicable.
  • In consideration of the initial Fees specified on the applicable Purchase Order, SoftIron will provide Training to Subscriber in accordance with the terms specified in the Purchase Order.
  • In consideration of an additional Equipment Maintenance Fee specified on an applicable Purchase Order, SoftIron will provide the following services for the Equipment to Subscriber in accordance with the terms specified:
  • To obtain maintenance service for any Equipment, Subscriber must call SoftIron’s maintenance and support number to describe the problem and attempt to resolve the issue. If the problem cannot be remedied by phone support, Subscriber will be given a return authorization. Subscriber must return the faulty Equipment to SoftIron with insurance and shipping prepaid to SoftIron’s repair facility, along with a written description of the problem. Upon receipt of the Equipment, SoftIron will promptly assign a service representative to make such repairs (including replacement of components on an exchange basis, if needed) and adjustments to place the Equipment in normal operating condition.  In no event shall SoftIron be responsible for any damages or liability arising from any delay in providing any maintenance hereunder.
  • SoftIron’s Equipment maintenance obligations will not apply to any part of the Equipment if adjustment, repair, or parts replacement is required because of (i) accident, neglect, misuse, failure of electric power, failure of Subscriber to provide appropriate environmental conditions, relocation of Equipment not done by SoftIron, or causes other than ordinary use; (ii) repair or alteration, or attempted repair or alteration, of any Equipment components not done by SoftIron; (iii) failure caused by a product not part of the Equipment; (iv) Subscriber’s connection of another machine or device to the Equipment that makes Equipment maintenance commercially impracticable or that has caused damage to such Equipment; (v) damage or destruction caused by natural or man-made acts or disasters; (vi) failure of Subscriber to adhere to the manufacturer’s terms and conditions of use or specifications; or (vii) the use of the Equipment other than in connection with the minimum requirements specified in the Purchase Order and in accordance with the Documentation.
  1. Order and Delivery
    • Subscriber may place orders under this Agreement by completing any number of Purchase Orders. Upon Subscriber clicking “I Agree” and subsequently submitting a Purchase Order, Subscriber shall become subject to the terms and conditions of this Agreement, except that the terms and conditions of any Purchase Order will control over any conflicting terms and conditions set forth in this Agreement.   The terms and conditions set forth in this Agreement and in any Purchase Order will control in the event that there are different or additional terms in any purchase order or other ordering documents, acceptance forms or invoices. Unless otherwise specified in this Agreement or any Purchase Order, any changes to a Purchase Order must be mutually agreed upon by the parties in writing, and may require a change in Fees and the payment of SoftIron’s costs of processing such change.
    • Subscriber agrees to purchase, and SoftIron agrees to sell, the Equipment as described and at the purchase price identified in the applicable Purchase Order.
    • Subscriber also understands and agrees that the ability of SoftIron to obtain the Equipment may be subject to availability and delays due to causes beyond SoftIron’s control.  SoftIron shall promptly place any orders submitted under this Agreement with each manufacturer or supplier and shall use the Delivery Method selected by Subscriber in the Purchase Order.
    • On Subscriber’s behalf, after the payment of all required Fees, SoftIron shall arrange for delivery of the System and any Third Party Software ordered by Subscriber pursuant to a Purchase Order to the Locations designated by Subscriber using the Delivery Method selected by Subscriber in the applicable Purchase Order.  Subscriber will pay all shipping and handling fees and insurance for the delivery of such products as set forth in the Purchase Order. All products provided hereunder will be delivered to Subscriber on a F.O.B. (SoftIron’s offices in Newark, California) basis, at which point title to the applicable Equipment will pass to Subscriber.
    • The System shall be deemed accepted by Subscriber unless Subscriber provides SoftIron with written notice of rejection within ten (10) days of the Delivery Date.  Conformance to the specifications, as referenced in the user operation manuals, shall solely determine the basis for Subscriber’s acceptability.  If a written notice of rejection is received by SoftIron, SoftIron shall have the right to make any necessary fixes to the System in conformance with the specifications within thirty (30) days of receipt of such notice.
  1. Term
  • The term of this Agreement and the licenses granted hereunder shall begin on the date hereof (the “Effective Date”) and shall continue for a period as outlined in the applicable Purchase Order, unless renewed or terminated in accordance with Section 14 (the “Term”).
  1. Payment
  • Amounts payable to SoftIron hereunder are payable in full without deduction or set-off, and are net of all Taxes.  Subscriber shall duly and promptly pay all Taxes levied or based upon amounts payable to SoftIron and upon the ownership, possession, or other use of the System and any other Third Party products and services.  Subscriber agrees to indemnify and hold SoftIron harmless from any Taxes that any taxing authority requires SoftIron to pay.  It shall be Subscriber’s sole obligations after payment to challenge the applicability of any Taxes if it desires to do so.  Subscriber shall not deduct from payments due to SoftIron any amounts paid or payable for Taxes unless expressly agreed to in writing by SoftIron.
  • The initial Fees to be paid to SoftIron hereunder are due and payable upon the submission of the Purchase Order. The Annual Fee, and any Fees for Special Maintenance Services or Equipment maintenance, will be billed annually, 60 days prior to the anniversary of the Effective Date. All per item Fees specified on any Purchase Order will be billed monthly at the beginning of the month following the month in which such Fees were incurred. The time of payment shall be of the essence of this Agreement.
  • If the whole or any part of any invoice remains outstanding for 30 days or more, Subscriber shall pay an agreed financial charge calculated at the lesser of the rate of 1.5% per part or complete month on the overdue balance and the maximum rate allowed by law from the due date until paid in full.  SoftIron shall pay the same financial charge on the amount of any credit due to Subscriber for sums previously paid by Subscriber that were the subject of a dispute resolved in Subscriber’s favor. Subscriber agrees to reimburse SoftIron for reasonable attorneys’ fees and any other costs associated with collecting delinquent payments.
  1. Performance
  • Subscriber shall give SoftIron its full cooperation access to enable SoftIron to provide the services contemplated by this Agreement and shall make available information, facilities, personnel, and services reasonably required by SoftIron for the performance of its obligations hereunder.
  • Subscriber agrees to maintain the System during the Term of this Agreement in accordance with the Documentation, and all operating manuals and manufacturer’s specifications and terms and conditions, in addition to the terms and conditions of this Agreement.
  • The sublicense of any stand alone Third Party Software, including the provision of any services by a Third Party in connection with such Third Party Software, may require that Subscriber provide additional information, including financial statements, checking account information, and the execution of separate agreements with such Third Party and to provide such other documents and information as the Third Party may require, which Subscriber shall provide upon request.
  1. Warranties
  • SoftIron warrants that the Software will perform in accordance with its functional specifications when operated in the specified operating environment as described in the Documentation.  For a period of 30 days after the Delivery Date, SoftIron will promptly provide replacements or corrections to any part of the Software that does not so perform where such failure is material, provided SoftIron is notified in writing.  This warranty shall not apply if the problem is caused by unauthorized modification to the Software or by incorrect Use. The warranties given by SoftIron are conditional upon the procurement and maintenance by Subscriber of the Equipment, or its own compatible hardware, in accordance with the then current specified configuration.
  • SoftIron’s sole obligation under the warranty stated in the foregoing paragraph shall be to repair or replace defective or non-conforming parts of the Software at its own expense and within a reasonable time.
  • SoftIron warrants that it has the right to license the Use of the Software and to sublicense the use of the Third Party Software.
  • SoftIron warrants that the Services described in this Agreement shall be performed in a workmanlike manner and in accordance with standards applicable to the financial software services industry.
  • THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY SOFTIRON.  SOFTIRON DOES NOT MAKE, AND SUBSCRIBER HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  THE STATED EXPRESS WARRANTIES ARE IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF SOFTIRON FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE SOFTWARE. SOFTIRON MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY EQUIPMENT (INCLUDING, WITHOUT LIMITATION THIRD PARTY SOFTWARE) MANUFACTURED BY THIRD PARTIES THAT MAY BE SOLD WITH THE SYSTEM, OR ANY OTHER THIRD PARTY SOFTWARE. SUBSCRIBER SHALL LOOK DIRECTLY TO THE THIRD PARTY MANUFACTURER FOR ANY SERVICING, REPAIRS OR OTHER WARRANTY CLAIMS WITH RESPECT TO SUCH THIRD PARTY PRODUCTS. SOFTIRON DOES NOT WARRANT THAT THE SYSTEM WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY SOFTIRON, EXCEPT AS EXPRESSLY SPECIFIED IN THE DOCUMENTATION, OR THAT THE OPERATION OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE.
  1. Indemnification
  • SoftIron shall indemnify Subscriber and hold Subscriber harmless against any claim or action that alleges the Use of the Software infringes a patent, copyright or other proprietary right of a Third Party enforceable in the Locations; provided that Subscriber provides SoftIron with (i) prompt written notice of such claim or action, (ii) sole control and authority over the defense or settlement of such claim or action and (iii) proper and full information and reasonable assistance to defend and/or settle any such claim or action.
  • If as a result of any such claim, SoftIron or Subscriber is permanently enjoined from using the Software or any portion thereof by a final, nonappealable decree, SoftIron at its sole option and expense may (i) procure for Subscriber the right to continue to use the Software or the infringing portion thereof; or (ii) provide a replacement or modification for the Software or infringing portion thereof so as to settle such claim.  If modification of the Software is not reasonably practical in SoftIron’s sole opinion, SoftIron shall discontinue and terminate the license upon written notice to Subscriber and shall refund to Subscriber on a pro rata basis based on a 36-month amortization schedule, the total license Fee paid to SoftIron under this Agreement.
  • The foregoing states SOFTIRON’s entire liability for infringement of any copyrights, patents, or other proprietary rights of a Third Party by the System or any parts thereof, and Subscriber hereby expressly waives any other liabilities on the part of SOFTIRON arising therefrom.
  • SoftIron shall have no liability for any claim based upon:
  • Use of any part of the System in combination with materials, software, or equipment not provided by SoftIron; or
  • Modifications to the System made by Subscriber or any Third Party.
  1. Limitation of Liability of the Parties
    • SOFTIRON SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, WHETHER IN TORT OR IN CONTRACT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN ANY EVENT, SOFTIRON’S AGGREGATE LIABILITY TO SUBSCRIBER FOR ANY AND ALL CAUSES OF ACTION  RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY SUBSCRIBER TO SOFTIRON FOR THE SERVICES RESULTING IN SUCH LIABILITY IN THE 12-MONTH PERIOD PRECEDING THE DATE THE CLAIM ACCRUED.  EXCEPT AS PROVIDED IN SECTIONS 4.1, 4.3 AND 4.5, (A) SOFTIRON’S SOLE LIABILITY FOR A DEFAULT RELATING TO SOFTWARE SHALL BE THE CORRECTION BY SOFTIRON OF DEFECTS IN THE SOFTWARE WHICH OCCUR DURING THE 30-DAY PERIOD IMMEDIATELY FOLLOWING THE SOFTWARE DELIVERY DATE, AND (B)  SOFTIRON’S SOLE LIABILITY FOR A DEFAULT RELATING TO THE EQUIPMENT SHALL BE REPAIR OR REPLACEMENT OF THE DEFECTS IN THE EQUIPMENT WHICH OCCUR DURING THE 30-DAY PERIOD IMMEDIATELY FOLLOWING THE DELIVERY DATE.
  2. Title and Rights of the Software
  • Nothing in this Agreement shall convey to Subscriber any title to or any rights in the Software including but not limited to all proprietary rights or ownership of any modifications.  Subscriber’s sole right in relation to the Software or any modifications is to Use the same for the duration of this Agreement under the terms and conditions contained herein.
  • The Software and all Enhancements or Updates made to the Software and all patents, copyrights, trademarks or other proprietary rights related thereto are the sole and exclusive property of SoftIron, whether made by SoftIron, Subscriber, or any of their employees or agents.  Subscriber shall execute documents reasonably required by SoftIron to perfect such rights.
  1. Non-Disclosure
  • By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Confidential Information will be limited to the System, the terms and pricing under this Agreement and all information clearly identified as confidential. A party’s Confidential Information will not include information that: (a) is or becomes generally known to the public through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party without use of or reference to the disclosing party’s Confidential Information.
  • The parties agree to hold each other’s Confidential Information in strict confidence during the term of this Agreement and for a period of three (3) years after termination of this Agreement. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party for any purpose except to the extent necessary to exercise its rights under this Agreement, and to treat Confidential Information of the other party with the same degree of care with which it would treat its own confidential information of a like nature, and in no case with less than a reasonable degree of care. Each party agrees not to use the other party’s Confidential Information for any purpose other than the performance of this Agreement. Each party agrees to limit the disclosure of Confidential Information to those of its employees and agents who have a need to know such Confidential Information, and each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. It will not be a breach of this section if Confidential Information is disclosed pursuant to subpoena or other compulsory judicial or administrative process, provided the party served with such process promptly notifies the other party and provides reasonable assistance so that the other party may seek a protective order against public disclosure. Upon expiration or termination of this Agreement, each party shall return all Confidential Information received from the other party.
  • Any breach of the restrictions contained in this Section 13 is a breach of this Agreement which may cause irreparable harm to the nonbreaching party. Any such breach shall entitle the nonbreaching party to injunctive relief in addition to all legal remedies.
  1. Termination
  • The termination of this Agreement shall automatically, and without further action by SoftIron, terminate and extinguish the license(s) granted hereunder, and all rights in and to the Software shall automatically revert irrevocably to SoftIron.  SoftIron shall have the right to take immediate possession of the Software and all copies thereof wherever located without further notice or demand.
  • Either party may terminate this Agreement by written notice to the other party at least one-hundred eighty (180) days prior to the expiration of the Term of this Agreement.
  • Either party may terminate this Agreement upon written notice if:
    • the other party materially breaches any material term or condition of this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach; or
    • the other party applies for or consents to the appointment of a receiver, trustee or liquidator for substantially all of its assets or such a receiver, trustee or liquidator is appointed; or the other party has filed against it an involuntary petition for bankruptcy that has not been dismissed within thirty (30) days thereof, or files a voluntary petition for bankruptcy, or a petition or answer seeking reorganization, becomes or is adjudicated insolvent or bankrupt, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors or seeks to take advantage of any law relating to relief of debtors.
  • SoftIron may terminate this Agreement immediately, if Subscriber violates the provisions of Sections 2, 13, or 15 and fails to remedy any such breach within 5 days of notice thereof from SoftIron.
  • Exercise of either party’s right of termination shall not prejudice legal rights or remedies either party may have against the other in respect of any breach of the terms of this Agreement.
  1. Non-Assignment
  • Subscriber may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of SoftIron. Any purported assignment, transfer, delegation or other disposition by Subscriber will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
  1. Entire Agreement
  • This Agreement, including the Purchase Order, which is hereby expressly incorporated herein, constitutes the complete and exclusive statement of the agreement between the parties as to the subject matter hereof and supersedes all previous agreements with respect thereto.  This Agreement may not be amended or modified except by a written instrument executed by both parties.
  1. Notices
  • Any notice, request, demand or other communication required or permitted hereunder will be in writing and will be deemed to be properly given upon the earlier of (a) actual receipt by the addressee, (b) five (5) business days after deposit in the mail, postage prepaid, when mailed by registered or certified airmail, return receipt requested, or (c) two (2) business days after being sent via private industry courier to the respective parties at the addresses set forth in the applicable Purchase Order or to such other person or address as the parties may from time to time designate in a writing delivered pursuant to this Section.
  1. Miscellaneous Terms and Provisions
  • The clause headings used herein are inserted only as a matter of convenience and for reference and shall not affect the construction or interpretation of this Agreement.
  • Neither party shall be responsible for delays or failures in performance resulting from acts reasonably beyond the control of that party, except that this Section shall not apply to Subscriber’s payment of Fees.
  • This Agreement shall be construed and enforced under the laws of the State of California, without giving effect to its principles of conflicts of laws. Any legal suit, action or proceeding arising out of or relating to this Agreement will be commenced in a federal court in the Central District of California or in state court in the County of Santa Clara, California and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.
  • No action, regardless of form, arising out of this Agreement shall be brought by Subscriber more than one year after such cause of action shall have accrued.
  • The prevailing party in an action brought against the other to enforce the terms of this Agreement or any rights or obligations hereunder, shall be entitled to receive its reasonable costs and expenses of bringing such action including its reasonable attorneys’ fees.
  • In the event that any term or provision of this Agreement for any reason whatsoever be acknowledged by the parties, or be adjudged by a Court of competent jurisdiction or be held or rendered by any competent Government authority to be invalid, illegal or unenforceable, such term or provision shall be severed form the remainder of the terms and provisions of this Agreement and shall be deemed never to have been part of this Agreement and the remainder of the terms and provisions of this Agreement shall subsist and remain in full force and effect unless the basic purpose or purposes of this Agreement would thereby be defeated.
  • No waiver by either party of any default in the performance of or compliance with any provision, condition or requirement herein shall be deemed to be a waiver of performance of and compliance with any other provision, condition or requirement herein.
  • SoftIron agrees not to use Subscriber’s name or any of Subscriber’s officers’ names in any promotional material or activities without such party’s express written permission.
  • This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.

In witness whereof, this Agreement is entered into by and between SoftIron and Subscriber on the date that You click on the “I AGREE” button.