This License Agreement (the “Agreement”) for the a MC+A Cloud Connector (“Connector”) is made and entered into by and between Michael Cizmar + Associates Ltd. (“MC+A”) and the customer identified in the Ordering Document (“Customer”). This Agreement, and the corresponding MC+A Ordering Document by which Customer orders certain Products, set forth the terms and conditions under which Customer may license and use such Products. Ordering Documents are governed by this Agreement.
1. License
1.1 License Grant. Subject to the terms and conditions of this Agreement and the Ordering Document, and in consideration of Customer’s payment of all Fees, MC+A grants to Customer, and Customer agrees to comply with a non-sublicensable, non-transferable, non-exclusive, limited license to use the Product during the License Term specified in the order form. A license key that enables the Software may be required and forwarded to Customer electronically. Customer will only use the Product to create an index of, and to search for, Customer Content in compliance with all terms of use accessing those content systems. The license grant set forth herein is limited to the type of connector specified on the Ordering Document.
1.2 Other Users. Customer may allow Other Users to use the software for the purposes authorized in this Agreement, and subject to the terms of this Agreement. Customer is responsible for the behavior of the Other Users in connection with this Agreement. 1.3 Shipment and License Keys. The Product will not be fulfilled until MC+A receives either: (a) a complete and duly executed Order Form; or (b) a purchase order from Customer referencing a Quote. Upon shipment, MC+A may provide Customer with a temporary license key and will transmit a permanent license key upon receipt of full payment.
2. Restrictions
2.1 Generally. Customer will not, and will not allow others to: (a) adapt, alter, modify, decompile, translate, disassemble, or reverse engineer the Product or any component thereof; (b) alter the number of Documents; (c) create license keys that enable the Software; (d) copy the Software except as provided in Section 6.2; (e) use the Product for High Risk Activities; (f) transfer, sublicense, loan, sell, lease or use for timesharing or service bureau purposes the Product or any component of the Product; or (g) remove or alter any Brand Features or other proprietary notices on or in the Product.
2.2 Third Party Components. Any third party component embedded, included or provided for use with the Products may only be used in conjunction with such Products ordered under the Ordering Document, which use is subject to this Agreement. However, to the extent Products include components governed by open source licenses with provisions inconsistent with this Agreement, those components are instead governed solely by the applicable open source licenses. To the extent Products include components governed by open source licenses requiring the provision of corresponding source code for those components, MC+A hereby provides that source code consistent with those licenses.
2.4 Use of APIs. The Product incorporates various features in the form of products that can be accessed through public APIs that can be managed by Customer through the Admin Console. The use of these APIs shall be solely governed by the terms of service governing that particular API. Each party agrees that any change in those API terms of service or APIs will not be a ground for termination of this Agreement and that Customer’s remedy, apart from what may be included in the terms of service of that particular API, will lie in termination of the use of that API through the Admin Console.
3. Ownership
3.1 Generally. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. Intellectual Property Rights in and to the content accessed through the Connector are the property of the applicable content owner and may be protected by applicable laws.
3.2 Branding. Customer may display a Graphic with the results page or the search box (or other means used by an end user to enter a search query) and may link to the MC+A site located www.mcplusa.com (or such other URL as may be updated by MC+A). Customer’s use of Graphics is subject to MC+A’s then current Brand Feature Guidelines.
3.3 Brand Features. Any use of a party’s Brand Features will inure to the benefit of the party holding rights in those Brand Features. Each party agrees not to: (a) challenge or assist others to challenge the other party’s Brand Features or registration thereof (except to protect such party’s rights with respect to its own Brand Features); or (b) attempt to register any Brand Features that are confusingly similar to those of the other party.
4. Payment Terms
4.1 Purchase Process. MC+A will provide Customer an Ordering Document for each purchase, to confirm the Product, quantity and price.
4.2 Payment. All Fees are due thirty days from the invoice date. All payments due are in U.S. dollars. Payments made via wire transfer must include the following instructions:
Please contact MC+A for updated wire instructions.
4.3 Taxes. Customer is responsible for any Taxes, and Customer will pay MC+A for the software license without any reduction for such amounts. If MC+A is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides MC+A with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to MC+A, Customer must provide MC+A with an official tax receipt or other appropriate documentation to support such withholding.
4.4 Invoice Disputes. Any invoice disputes must be submitted prior to the invoice due date. If the parties determine that certain billing inaccuracies are attributable to MC+A, MC+A will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, MC+A will apply the credit memo amount to the disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice.
4.5 Delinquent Payments. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by MC+A in collecting delinquent amounts, except where such delinquent amounts are due to MC+A billing inaccuracies.
4.6 Purchase Orders.
4.6a. Required. If Customer’s Ordering Document is a Quote, then a purchase order is required. If Customer’s Ordering Document is an Order Form, and Customer wants a purchase order number on its invoice, Customer will inform MC+A and will issue a purchase order to MC+A. If Customer requires a purchase order, and fails to provide the purchase order to MC+A, then MC+A will not be obligated to provide the software until the purchase order has been received by MC+A.
4.6b. Not Required. If Customer’s Ordering Document is an Order Form, and Customer does not require a Purchase Order number to be included on the invoice, Customer must select “No” in the Purchase Order section of the Order Form. If Customer waives the Purchase Order requirement, then: (a) MC+A will invoice Customer without a Purchase Order; and (b) Customer agrees to pay invoices without a Purchase Order.
5. Delivery
The Products will be delivered by the shipping method indicated on the Ordering Document. MC+A will bear the risk of loss for the Product until the Product is received by Customer. Upon receipt by Customer, Customer bears all risk of loss for the Product.
6. Technical Support Services
6.1 Generally. Subject to Customer’s payment of the Fees, MC+A will provide TSS to Customer for the Products for the Support Period in accordance with the TSSG in effect when the Products are ordered. Unless otherwise agreed in writing, to receive TSS Customer must provide MC+A with all reasonably required access to the Connector in accordance with the TSSG. Customer’s failure to provide such access will be at Customer’s own risk and without liability to MC+A.
6.2 Software Updates. TSS includes Updates. Customer’s use of Updates is subject to this Agreement and the Ordering Document. Customer will install Updates in accordance with the TSSG. Customer may make a copy of an Update to a physical medium solely for the purpose of facilitating the installation of that Update onto the Connector. Customer will immediately erase or destroy the copy of the Update once that Update is installed on the Connector.
6.3 Changes to TSS. If MC+A makes a material change to the TSSG, MC+A will notify Customer by either sending an email to the Customer Contacts or alerting Customer via the GES Site. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify MC+A via the GES Site within thirty days after receiving notice of the change. If Customer notifies MC+A as required, then Customer will remain governed by the TSS in effect immediately prior to the change until the end of the then-current term for the TSS. If the TSS are renewed, they will be renewed under MC+A’s then current TSSG.
7. Confidential Information
7.1 Obligations. Obligations. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information, but with no less than a reasonable standard of care; and (b) not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates, employees and agents in violation of this Section.
7.2 Exceptions. Confidential Information does not include information that: (a) the recipient already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
7.3 Required Disclosure. Each party may disclose the other party’s Confidential Information when required by law, but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
8. Publicity
Customer agrees that MC+A may include Customer’s name or Brand Features in a list of MC+A customers. Customer also agrees that MC+A may verbally reference Customer as a customer of the MC+A products or services that are the subject of this Agreement. This section is subject to Section 3.3.
9. Limited Warranty
9.1 Limited Warranty. MC+A warrants to Customer that: (a) Hardware will be free from defects in material and workmanship, and will substantially conform to all material aspects of the Documentation, for a period of ninety days from the later of: (i) installation of the Appliance; or (ii) ten days after the Shipment Date; and (b) Software will substantially achieve the functionality described in the Documentation for a period of ninety days from the later: of (i) installation of the Appliance; or (ii) ten days after the Shipment Date.
9.2 Exclusions. The limited warranty set forth in Section 9.1 above will not apply to defects or errors in the Appliance that are caused by: (i) Customer’s failure to follow MC+A’s environmental, installation, operation or maintenance instructions or procedures in the Documentation; (ii) Customer’s mishandling, abuse, misuse, negligence, or improper storage, servicing, or operation of the Appliance (including without limitation use with incompatible equipment); or (iii) modifications, repairs or improper installation not performed by MC+A.
9.3 Exclusive Remedy. MC+A’s entire liability and Customer’s sole and exclusive remedy with respect to breach of the above warranty will be at MC+A’s option: (a) repair of the Product in accordance with the TSSG; (b) replacement of the defective component or entire Appliance, as applicable; or (c) refund of the purchase price paid for the Appliance.
10. Disclaimer
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) MC+A EXCLUDES ALL WARRANTIES, GUARANTEES, CONDITIONS, TERMS, RPRESENTATIONS, AND UNDERTAKINGS; AND (B) MC+A DOES NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. MC+A DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED. THE PRODUCT IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES.
11. Term and Termination
11.1 Term. Subject to Customer’s payment of Fees, the term of the license granted in this Agreement for any Product will begin on the Shipment Date and will continue for the License Term, unless terminated earlier as set forth below.
11.2 Termination for Breach. Either party may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
11.3 Effect of Termination.
11.3a. Termination for MC+A’s Breach. If the Agreement is terminated for MC+A’s breach, the licenses granted herein regarding Customer’s use of the Product may, at Customer’s option, continue for the remainder of the License Term, subject to Customer’s continued compliance with this Agreement.
11.3b. Termination for Customer’s Breach. If the Agreement is terminated for Customer’s breach, then: (i) the License Term and all other rights and licenses granted by one party to the other, or any services provided by MC+A to Customer, will cease immediately; (ii) upon request, each party will promptly return all Confidential Information of the other party; (iii) all payments owed by Customer to MC+A are immediately due; and (iv) Customer must immediately return the Product to MC+A via MC+A’s authorized return shipment process and, upon receipt by MC+A, title in the Hardware will revert to MC+A.
11.3c. Expiration of the License Term. The Connector will cease functioning upon the expiration of the License Term. Customer will erases all Software as instructed by MC+A and provide certification to MC+A of this deletion within ten business days of the expiration of the License Term.
12. Limitation of Liability
12.1 Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE DAMAGES, OR LOSSES OR EXPENSES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES, LOSSES OR EXPENSES DO NOT SATISFY A REMEDY.
12.2 Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO MC+A DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
12.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations, or violations of a party’s Intellectual Property Rights by the other party.
13. Limitation of Liability
13.1 By MC+A. MC+A will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim the Connector used in accordance with the Documentation and this Agreement infringes or misappropriates any patent, copyright, trade secret or trademark of that third party.
13.2 Exceptions. The obligations set forth in Section 13.1 do not apply if the third party claim is caused by, or results from: (a) Customer’s combination or use of the Connectors with software, services, or products developed by Customer or third parties, if the claim would have been avoided by the non-combined or independent use of the Connectors; (b) modification of the Connectors by anyone other than MC+A if the third party claim would have been avoided by use of the unmodified Connector; (c) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; (d) Customer’s use of the Connector in a manner not in accordance with this Agreement or the Documentation; or (e) use of other than MC+A’s most current release of the Connector if the third party claim would have been avoided by use of the most current release or revision.
13.3 By Customer. Customer will indemnify, defend, and hold harmless MC+A from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of: (a) a third party claim made against MC+A for infringement or misappropriation based on conduct by Customer as described in Section 13.2; or (b) Customer’s breach of Section 15 (Export Compliance).
13.4 Possible Infringement.
13.4a. Repair, Replace, or Modify. If MC+A reasonably believes the Connectors infringes a third party’s Intellectual Property Rights, then MC+A will: (a) procure for Customer the right to continue to use the Connector; (b) replace the Connector; or (c) modify the Connector to avoid the alleged infringement.
13.4b. Termination and Refund. If MC+A does not reasonably believe the options in Section 13.4(a) are commercially reasonable, MC+A may terminate the license for the allegedly infringing Connector and refund a percentage of the Fees paid by Customer through the date a third party claim occurs for the allegedly infringing Connector, per Section 13.1, less depreciation for use assuming straight line depreciation over the Support Period.
13.5 General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
14. Government Purposes (applicable to United States government customers only).
The Product is commercial within the meaning of the applicable civilian and military Federal acquisition regulations and any supplements thereto. If the user of the Product is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Product, including technical data or manuals, is governed by the terms, conditions and covenants contained in the MC+A standard commercial license agreement, as contained herein.
15. Export Compliance.
Customer will comply with, and will obtain all prior authorization from the competent government authorities required by, the Export Control Laws. This Section 15 will survive termination or cancellation of this Agreement.
16. Miscellaneous.
16.1 Notices. All notices must be in writing and addressed to the attention of the other party’s Legal Department and primary point of contact. Notice will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier, or mail; or (b) when verified by automated receipt or electronic logs if sent by facsimile or email.
16.2 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except assignment of the Agreement in its entirety to an Affiliate but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
16.3 Change of Control. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction), (a) the party experiencing the change of control will provide written notice to the other party within 30 days after the change of control, and (b) the other party may immediately terminate this Agreement any time between the change of control and thirty days after it receives the written notice in subsection (a).
16.4 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
16.5 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
16.6 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
16.7 Severability. If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
16.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
16.9 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
16.10 Governing Law. This Agreement is governed by Illinois law. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN COOK COUNTY, ILLINOIS.
16.11 Amendments. Any amendments to this Agreement must be agreed upon in writing.
16.12 Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination of this Agreement.
16.13 Entire Agreement. This Agreement, including any documents attached to this Agreement, and the Ordering Document, is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement or in the Ordering Documents are hereby incorporated by this reference. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Ordering Document, the Agreement, and the terms located at any URL.
16.14 Counterparts. The parties may enter into this Agreement by executing the applicable Order Document, which may be executed in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
17. Definitions.
“Admin Console” means the web based administrative console through which Customer can configure and administer the software, and link to MC+A’s online help center.
“Affiliate” means, with respect to either MC+A or Customer, any entity that directly or indirectly Controls, is Controlled by, or is under common Control with such party.
“Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
“Brand Features Guidelines” means the guidelines for third party use of MC+A’s
“Confidential Information” means information disclosed by a party to the other party under this agreement that is marked as confidential or would normally be considered confidential under the circumstances. Information provided to MC+A by Customer during MC+A’s provision of TSS is Customer’s Confidential Information.
“Control” means control over greater than fifty percent of the voting rights or equity interests of a party.
“Customer Contacts” is defined in the TSSG.
“Customer Content” means content owned by, or lawfully licensed to, Customer. Customer Content may be located on servers that are owned and operated by Customer, or operated on Customers behalf.
“Documents” means the number of documents Customer may index, and is set forth on the Ordering Document.
“Documentation” means MC+A proprietary documentation in the form generally made available by MC+A to its customers for use with the Connector, including documentation provided via the Admin Console help center.
“Export Control Laws” means all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.
“Fees” means all applicable fees as set forth in the Ordering Document.
“High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control or life support systems, where the failure of the Product could lead to death, personal injury, or environmental damage.
“Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
“License Term” means the period of time during which Customer is authorized to use the software, and will be set forth in the Ordering Document.
“Order Form” means the written MC+A order form for the Products MC+A will provide to Customer subject to this Agreement. All Order Forms are subject to this Agreement, and will contain at least: (i) Product name; (ii) Document limit, as applicable; (iii) price; (iv) type of TSS provided and the Support Period; (v) the License Term; and (vi) a reference number.
“Ordering Document” means either a MC+A Order Form, or a MC+A Quote.
“Other Users” means Customer’s Affiliates, agents, contractors, or authorized end users.
“Primary System” means deployed software to a system for which Customer has obtained a license from MC+A.
“Product” means the Software and the Documentation.
“Quote” means a written document supplied by MC+A specifying the Products MC+A will provide to Customer subject to this Agreement. All Quotes are subject to this Agreement, and will contain at least: (i) Product name; (ii) Document limit, as applicable; (iii) price; (iv) type of TSS provided and the Support Period; (v) the License Term; and (vi) a reference number.
“Shipment Date” means the date of shipment by MC+A or its designated agent.
“Software” means the MC+A proprietary computer software, in binary executable form only, which is installed at the customer site
“Support Period” means the period of time, set forth on the Ordering Document, during which MC+A will provide TSS. Unless otherwise agreed to in writing, the Support Period will begin upon the later of: (i) MC+A’s installation of the Products; or (ii) ten days following the Shipment Date.
“TSS” means the technical support services provided by MC+A, in accordance with MC+A’s TSSG, for the Products identified in the Ordering Document for Support Period.
“TSSG” means MC+A’s then current Technical Support Services Guidelines, which may be may be accessed at the following URL: (or other such URL as MC+A provides periodically).
“Updates” is defined in the TSSG.