License Agreement

Sesame Software

General Software License Agreement

This Software License Agreement applies to all Sesame Software products unless superseded by a specific contract. It does not apply to the hosted Salesforce backup and recovery service, which is covered by a separate agreement.

IMPORTANT – READ CAREFULLY:
This End-User License Agreement (“Agreement”) is an agreement between “Account Name” (“YOU”) and SESAME SOFTWARE, Inc. (“SESAME”) for the software and documentation to be provided by SESAME.

License and Delivery.
Grant of license:
In consideration of the payment of the applicable license fees, SESAME grants YOU a nonexclusive, non-transferable license to perform, execute, display and use the Licensed Program in machine-readable form subject to the terms and conditions of this Agreement. Please remember SESAME continues to own the product, YOU have only purchased a personal right to use it, and may not transfer the license to anyone. Please also remember that YOU must comply with all the terms stated in this agreement.

The Licensed Program will be delivered, at YOUR option, by:
Electronically transmitting the Licensed Program; or
Installing the Licensed Program on physical media provided by YOU.

Sharing this Licensed Program.
YOU may distribute or make the Licensed Program available to YOUR Affiliates and/or use the Licensed Program for the benefit of Affiliates, which Affiliates will be entitled to the rights and benefits available to YOU hereunder and subject to the restrictions applicable to YOU hereunder.

For purposes of this Agreement.
“Affiliates” means entities that YOU Control, and

“Control” means the possession, direct or indirect, of the power to direct or cause the direction of management and policies, whether through the ownership of voting shares, or by express authorization of those agents or employees of YOU or the voting shares employed by YOU. In addition, in the event YOU divests an entity, such divested entity may continue to use the Licensed Program, subject to the terms and conditions herein, for a transition period of no more than twelve (12) months following such divestiture.

Scope of Rights.
YOU may:
Install the Licensed Program on any of YOUR computers at location(s) owned or operated by YOU or by YOUR third-party outsourcer as provided below;

Use and execute the Licensed Program for purposes of serving the needs of YOUR business internally;

In support of YOUR authorized use of the Licensed Program as specified above, store the Licensed Program’s machine-readable instructions or data in, transmit it through, and display it on computers; and

Make one copy of the Licensed Program in machine-readable form, for nonproductive backup purposes only, and make such other copies as are necessary for routine backup and for disaster recovery purposes.

Notwithstanding anything herein to the contrary, nothing herein prohibits YOU from having the Licensed Program hosted by a third-party outsourcer for YOUR benefit or accessed and operated by third parties for YOUR benefit, provided such third parties are subject to confidentiality restrictions consistent with this Agreement. Except as specified above, YOU will have no other right to make use of the Licensed Program in any manner.

Fees and Payments.
YOU must pay the applicable license fee for the Licensed Program directly to SESAME.

YOU are solely responsible for the payment of any applicable taxes (including, but not limited to, sales or use taxes, intangible taxes, and property taxes) resulting from this license or YOUR possession and use of the Licensed Program (“Licensee Taxes”).

SESAME reserves the right to have YOU pay any such Licensee Taxes as they fall due to SESAME for remittance to the appropriate authority. YOU agree to hold harmless SESAME from all claims and liability arising from YOUR failure to report or pay such taxes.

Support.
SESAME will promptly provide to Company any new functionality, updates and enhancements, and code repairs or fixes required to correct problems with the Licensed Program (collectively, “Upgrades”), regardless of their designation, at the same time as SESAME makes such Upgrades commercially available to other licensees of the Licensed Program.

All Updates will become part of the base product, and will be wholly owned by SESAME and made a part of the product offered for general license to the public.

SESAME will also provide to YOU email, web support, and phone support services for problem resolution. However, SESAME offers support only for the most current and prior major version of the Licensed Program issued by SESAME from time to time, so YOU must make sure to obtain and substitute or incorporate all new versions issued by SESAME pursuant to its warranty and its Support and Maintenance programs. Unless SESAME give YOU advance notice as specified above, Support and Maintenance is included in the license fee.

SESAME is not responsible for obsolescence of the Licensed Program that may result from changes in YOUR requirements. SESAME assumes no responsibility for the use of superseded, outdated, or uncorrected versions of the Licensed Program.

YOUR Responsibilities.
YOU are responsible for selecting operators to operate the Licensed Program on YOUR own equipment and it is YOUR responsibility to ensure these operators are familiar with the information, calculations, and reports that serve as input and output of the Licensed Program. Except as agreed otherwise in writing, SESAME assumes no responsibility under this Agreement for converting YOUR data files for use with the Licensed Program.

Proprietary Protection and Restrictions.
As stated in paragraph 1 of this agreement, SESAME shall have sole and exclusive ownership of all right, title, and interest in and to the Licensed Program and all Updates (including, but not limited to, ownership of all trade secrets and copyrights pertaining thereto), subject only to the license rights and privileges expressly granted to YOU herein by SESAME.

As a condition of the grant of this license, YOU must keep the Licensed Program free and clear of all claims, liens, and encumbrances. YOU agree that:

YOU may not modify or distribute to third parties the Licensed Program (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by SESAME. YOU may not reverse engineer, reverse compile, or otherwise translate the Licensed Program. No service bureau work, multiple-user license, or time-sharing arrangement is permitted, except as expressly authorized by SESAME in writing.

YOU will safeguard any information YOU obtain in connection with this Agreement as SESAME’s confidential information and will not disclose or use any such information except as expressly permitted by this Agreement.

Infringement Indemnification.
If a third party claims that the Licensed Program infringes its patent, copyright, or trade secret, or any similar intellectual property right, SESAME will defend YOU against such claims at SESAME’s expense and indemnify YOU against all damages that a court finally awards or that is the subject of a full and final settlement, provided that YOU promptly notify SESAME in writing of the claim and allow SESAME to control, and cooperate with SESAME in, the defense or any related settlement negotiations.

If such a claim is made or appears possible, YOU agree to permit SESAME to enable YOU to continue to use the Licensed Program, or to modify or replace it, provided that any modified or replacement programs are at least equivalent in functionality, performance, and compatibility as the Licensed Program.

If SESAME determines that none of these alternatives is reasonably available, YOU agree to return the Licensed Program on SESAME’s written request, and YOU will then receive a refund of the amount paid to SESAME as the license fee for the Licensed Program during the prior 12 months. However, SESAME has no obligation for any claim based on YOUR modification of the Licensed Program or its combination, operation, or use with any product, data, or apparatus not provided by SESAME or identified in the applicable documentation, provided that such claim solely and necessarily is based on such combination, operation, or use and such claim would be avoided by combination, operation, or use with products, data, or apparatus provided by SESAME.

THIS SECTIONSTATES SESAME’S ENTIRE OBLIGATION TO YOU WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

Limited Warranty and Limitation of Liability.
SESAME warrants, for YOUR benefit alone, that it owns or otherwise has the right to grant the license to the Licensed Program, and that the Licensed Program will conform in all material respects to the specifications of the Licensed Program during the 30 days following its installation.

As YOUR exclusive remedy for any material defect in the Licensed Program for which SESAME is responsible, SESAME shall attempt through reasonable effort to correct or cure any reproducible defect by issuing corrected instructions, a restriction, or a bypass. In the event SESAME does not correct or cure such nonconformity or defect after it has had a reasonable opportunity to do so, YOUR exclusive remedy shall be the refund of the amount paid as the license fee for the defective or nonconforming module of the Licensed Program. SESAME shall not be obligated to correct, cure, or otherwise remedy any nonconformity or defect in the Licensed Program if YOU have made any changes whatsoever to the Licensed Program, if the Licensed Program has been misused or damaged in any respect, or if YOU have not reported to SESAME the existence and nature of such nonconformity or defect in a timely manner.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SESAME DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE LICENSED PROGRAM, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, AND ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.

THE CUMULATIVE LIABILITY OF SESAME FOR ALL CLAIMS RELATING TO THE LICENSED PROGRAM AND THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL LICENSE FEES PAID TO SESAME HEREUNDER DURING THE PRIOR 12 MONTHS. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO THE INDEMNIFICATION PROVIDED IN SECTION 7 HEREOF.

SESAME SHALL HAVE NO LIABILITY FOR LOSS OF DATA OR DOCUMENTATION, IT BEING UNDERSTOOD THAT YOU ARE RESPONSIBLE FOR REASONABLE BACKUP PRECAUTIONS. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS OR ANY SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF DAMAGES IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

YOU may have additional rights under certain laws (e.g. consumer laws) that do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If such laws apply, our exclusions or limitations do not apply to YOU.

Term of Agreement; Termination.
Unless otherwise agreed by the parties in writing, the term of this Agreement (and the license thereunder) is one (1) year beginning upon YOUR signing of this contract. SESAME shall notify YOU in writing approximately 60 days in advance of termination to arrange a new contract at that time. Either party may terminate this Agreement immediately in the event that the other party:

materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving notice of such breach; or

becomes subject to a proceeding under Title 11 of the United States Code, or a similar proceeding.
Upon termination or expiration of this Agreement, all rights granted to YOU will terminate and revert to SESAME.
Promptly upon termination or expiration of this Agreement for any reason or upon discontinuance or abandonment of YOUR possession or use of the Licensed Program, YOU must return or destroy all copies of the Licensed Program in YOUR possession or control (whether modified or unmodified), and all other materials pertaining to the Licensed Program (including all copies thereof).

Dispute Resolution and Governing Law.
Informal Negotiations.
To expedite resolution and control the cost of any dispute, controversy or claim related to this License Agreement (“Dispute”), YOU and SESAME agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least 30 days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. SESAME will send its notice to your billing address and email YOU a copy to the email address YOU have provided to us. You will send your notice to SESAME SOFTWARE, INC., 5201 Great America Parkway, Ste. 320, Santa Clara, CA 95054, attention: Legal Department.

Mediation of Disputes.
In the event the Dispute is not resolved in negotiations pursuant to the parties may submit the matter to Mediation to be held in the County of San Diego, California, before a mutually acceptable neutral former judge or respected mediator familiar with and experienced in similar disputes. Either party may invoke the terms of this paragraph at any time after the lapse of the “Informal Negotiation” period stated above.
Failure of any party to offer or accept mediation when proposed by another party shall be a waiver of the right to claim attorneys fees or costs in any subsequent proceeding.

Binding Arbitration.
If YOU and SESAME are unable to resolve a Dispute through informal negotiations or mediation, either YOU or SESAME may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAAs Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, SESAME will pay all arbitration fees and expenses.
The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this License Agreement, YOU and SESAME may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

Restrictions.
YOU and SESAME agree that any arbitration shall be limited to the Dispute between SESAME and YOU individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

Exceptions to Informal Negotiations and Arbitration.
YOU and SESAME agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or SESAME’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.

To the degree permitted by California law and Federal intellectual property law, in any action or proceeding alleging any of the foregoing with regard to SESAME’S intellectual property, YOU stipulate and agree that (1) that the legal remedies available are inadequate relief to address SESAME’s harm; (2) that if injunctive relief is not granted, SESAME shall suffer irreparable harm if its intellectual property is not protected; and, (3) that injunctive relief shall be afforded to SESAME in the interests of judicial economy to prevent any party from being forced to bring a multiplicity of actions to enforce its rights to protect is property.

Location.
If YOU are a resident of the United States, any arbitration will take place at any reasonable location convenient for YOU. For residents outside the United States, any arbitration shall be initiated in the County of San Diego, State of California, United States of America. Any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the County of San Diego, State of California, United States of America, and YOU and SESAME agree to submit to the personal jurisdiction of that court.

Governing Law.
Except as otherwise set forth herein,
this License Agreement shall be governed by, and will be construed under, the Laws of the United States of America and the law of the State of California, without regard to choice of law principles.

The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

For our customers who purchased a license to the SOFTWARE in, and are a resident of, Canada, Australia, Singapore, or New Zealand, other laws may apply if YOU choose not to agree to arbitrate as set forth above; provided, however, that such laws shall affect this Agreement only to the extent required by such jurisdiction. In such a case, this Agreement shall be interpreted to give maximum effect to the terms and conditions hereof.

If YOU purchased your license to the SOFTWARE in New Zealand, and are a resident of New Zealand, The New Zealand Consumer Guarantees Act of 1993 (“Act”) may apply to the SOFTWARE and/or the Service as supplied by SESAME to YOU. If the Act applies, then notwithstanding any other provision in this License Agreement, YOU may have rights or remedies as set out in the Act which may apply in addition to, or, to the extent that they are inconsistent, instead of, the rights or remedies set out in this License Agreement.

Those who choose to access the Service from locations outside of the United States, Canada, Australia, Singapore, or New Zealand do so on their own initiative and are responsible for compliance with local laws if and to the extent local laws are applicable.

Miscellaneous.
No modification of this Agreement shall be binding unless it is in writing and is signed by an authorized representative of the party against whom enforcement of the modification is sought. YOUR rights may not be transferred, leased, assigned, or sublicensed except for a transfer of the Licensed Program in its entirety to a successor in interest of YOUR entire business who assumes the obligations of this Agreement in connection with YOUR merger, corporate reorganization, or sale of all (or substantially) all of YOUR assets. Any notices required or permitted under this Agreement shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, with proper postage affixed.

Severability
In the event that any of the terms of this Agreement is or becomes or is declared to be invalid or void by any court or tribunal of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from this Agreement and all the remaining terms of this Agreement shall remain in full force and effect.

THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF SESAME’S AND YOUR OBLIGATIONS AND RESPONSIBILITIES AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF OF SESAME RELATING TO THE SUBJECT MATTER HEREOF.