Software License Agreement
THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE
INDIVIDUAL, OR THE ENTITY IDENTIFIED AS “CUSTOMER” (AS DEFINED HEREinafter)
AND BABBLE SOFT, LLC.
THIS AGREEMENT STATES THE TERMS and conditions UNDER WHICH CUSTOMER MAY
USE THE SOFTWARE. BY clicking on the accept
button, INSTALLING, HAVING SOFTWARE INSTALLED ON CUSTOMER’s BEHALF, COPYING,
HAVING SOFTWARE COPIED ON CUSTOMER’s
BEHALF, USING OR HAVING SOFTWARE USED ON CUSTOMER’s BEHALF, CUSTOMER INDICATES
THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY
THE TERMS SET FORTH IN THIS AGREEMENT. IF
“SOFTWARE” IS INSTALLED, COPIED OR USED
ON BEHALF OF CUSTOMER, THE TERMS SET FORTH IN THIS AGREEMENT SHALL APPLY TO
CUSTOMER AS WELL AS TO the INDIVIDUAL OR ENTITY INSTALLING, COPYING OR USING “SOFTWARE
ON BEHALF OF CUSTOMER. this
agreement shall be effective as of THE earlier of the date SOFTWARE
is installed or used. “SOFTWARE”
SHALL BE DEEMED ACCEPTED BY CUSTOMER TEN (10) DAYS AFTER THE DATE “SOFTWARE”
IS DELIVERED TO CUSTOMER. IF
CUSTOMER DOES NOT AGREE WITH THE TERMS and conditions SET FORTH IN THIS
AGREEMENT, DO NOT install or USE “SOFTWARE”
AND RETURN “SOFTWARE” TO BABBLE
SOFT, LLC WITHIN TEN (10) DAYS OF THE DATE “SOFTWARE”
IS DELIVERED TO CUSTOMER. ANY
REFUNDS (IF APPLICABLE) SHALL BE SUBJECT TO BABBLE
SOFT, LLC’s STANDARD REFUND POLICY IN EFFECT, LESS ANY RESTOCKING FEES
AND OTHER APPLICABLE FEES.
This Software License Agreement (“Agreement”) is made as of the Effective Date by and between BABBLE SOFT, LLC, a corporation with offices located at P.O. Box 500134, Austin, Texas 78750 and the individual or entity (hereinafter referred to as “Customer”) using the Software.
W I T N E S S E T H:
WHEREAS,
BABBLE SOFT, LLC owns certain SOFTWARE
applications (hereinafter referred to as
“SOFTWARE”); and
WHEREAS,
Customer has had an opportunity to review and approve the functions and
utilities of SOFTWARE and is familiar with
the use and operation of SOFTWARE; and
WHEREAS,
Customer has independently determined that SOFTWARE
will meet the needs of Customer; and
WHEREAS,
Customer desires to receive a license to use SOFTWARE
NOW THEREFORE, in consideration
of the mutual benefits of the covenants and restrictions herein contained, BABBLE
SOFT, LLC and Customer hereby agree as follows:
ARTICLE
I: RECITALS AND DEFINITIONS
Section
1.01 -- Recitals:
The above recitals and identification of parties are true and correct.
Section
1.02 -- Definitions:
The following definitions shall apply:
(1)
Access:
The term “Access” and variants thereof shall mean to store data in,
retrieve data from or otherwise approach or make use of (directly or indirectly)
through electronic means or otherwise.
(2)
SOFTWARE:
The term “SOFTWARE” shall mean the
object code for that certain SOFTWARE
application, including the Documentation, as provided by BABBLE
SOFT, LLC to Customer hereunder, including Updates.
(3)
Associate:
The term “Associate” shall mean an employee of BABBLE
SOFT, LLC or an independent contractor hired by BABBLE
SOFT, LLC.
(4)
Authorized Person:
The term “Authorized Person” shall mean Customer or employees of
Customer who agree in writing to maintain the confidentiality of Confidential
Information and individuals or organizations who are authorized in writing by BABBLE
SOFT, LLC to receive Confidential Information and who agree in writing to
maintain the confidentiality of such Confidential Information.
(5)
Cancellation Notice:
The term “Cancellation Notice” shall mean that written notice sent by
BABBLE SOFT, LLC to Customer seeking to
cancel this Agreement because of breach of this Agreement by Customer.
(6)
Confidential Information: The term “Confidential Information” shall mean all
information concerning this Agreement, SOFTWARE,
and the business and technical plans of BABBLE SOFT,
LLC which is disclosed by BABBLE SOFT, LLC
to Customer or learned by Customer.
(7)
Defects:
The term “Defects” shall mean programming errors which substantially
impair the performance, utility and functionality of SOFTWARE,
as represented in the Documentation.
(8)
Defect Notice:
The term “Defect Notice” shall mean that certain written notice from
Customer to BABBLE SOFT, LLC identifying
Defects.
(9)
Delivery Date:
The term “Delivery Date” shall mean the date SOFTWARE
is delivered to Customer (as applicable).
(10)
Deposit:
The term “Deposit” shall mean a sum of money equal to fifty percent
(50%) of the Price.
(11)
Documentation:
The term “Documentation” shall mean the SOFTWARE
user guide (in electronic or printed format) as provided to Customer on the
Delivery Date.
(12)
Documentation Fee:
The term “Documentation Fee” shall mean the sum of money paid by
Customer to BABBLE SOFT, LLC for additional
copies of Documentation requested by Customer pursuant to Section 3.02.
determined in accordance with BABBLE SOFT, LLC’s
then standard rates as of the date Customer’s request for additional copies of
the Documentation is received by BABBLE SOFT, LLC.
(13)
Effective Date:
The term “Effective Date” shall mean the earlier of the date that the
Sales Receipt is issued by BABBLE SOFT, LLC
or the date SOFTWARE is installed or used.
(14)
Event of Bankruptcy:
The term “Event of Bankruptcy” shall mean: (1) the filing of a
petition under any insolvency or bankruptcy statute seeking the declaration of
Customer as insolvent or bankrupt; (2) the filing of any action seeking
receivership or reorganization of Customer pursuant to or under any insolvency
or bankruptcy statute; or (3) the filing of any involuntary petition against
Customer pursuant to any insolvency or bankruptcy statute if such petition shall
remain unstayed or undismissed for a period of ten (10) days after filing.
(15)
Implement:
The term “Implement” and variants thereof (including, but not limited
to, the terms “implementation”, “implementing” and “implemented”)
shall mean to load.
(16)
Maintenance Services:
The term “Maintenance Services” shall mean Defect resolution services
concerning SOFTWARE (excluding the System) as
provided by BABBLE SOFT, LLC to Customer for
the prevailing fees and time and material rates published by BABBLE
SOFT, LLC and subject to BABBLE SOFT, LLC’s
standard maintenance terms.
(17)
Price:
The term “Price” shall mean the total price to be paid by Customer to
BABBLE SOFT, LLC for licensing SOFTWARE.
(18)
Restatements:
The term “Restatements” shall mean Section 757 of the Restatement of
Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of
the Uniform Trade Secrets Act, and Section 1839 of Title 18 of the United States
Code (18 U.S.C. § 1839).
(19)
Services:
The term “Services” shall mean Maintenance Services and that certain SOFTWARE
installation, training, telephone support, development and consulting
services as requested by Customer and approved by BABBLE
SOFT, LLC in writing.
(20)
Term:
The term “Term” shall mean a period of time commencing on the
Effective Date and continuing until this Agreement is terminated or canceled
under Article IV.
(21)
Third Party Technology:
The term “Third Party Technology” shall mean third party software,
computer, hardware, peripherals, components, devices, equipment and technology
used in connection with or related to SOFTWARE.
(22)
Unauthorized Access:
The term “Unauthorized Access” shall mean any access to SOFTWARE
except for the exclusive purpose of Recording Activities Surrounding the
Care of an Infant and Mother, and training employees of Customer in the use
of SOFTWARE.
(23)
Unauthorized User:
The term “Unauthorized User” shall mean any individual who accesses SOFTWARE
except for: (1) employees of Customer authorized by Customer to access SOFTWARE
and who agrees to maintain the confidentiality of Confidential Information for
the exclusive purpose of performing the Recording of Activities Surrounding
the Care of an Infant and Mother, and training employees of Customer in the
use of SOFTWARE and (2) Authorized Persons
authorized in writing by BABBLE SOFT, LLC to
access SOFTWARE.
(24)
Updates:
The term “Updates” shall mean the object code for updates, upgrades,
new versions, new releases or modifications to SOFTWARE
as generally made available by BABBLE SOFT, LLC
from time to time to BABBLE SOFT, LLC’s
customers for the applicable fee.
(25)
Warranty Term:
The term “Warranty Term” shall mean a period of time commencing on
the Delivery Date and ending on the date which is sixty (60) days thereafter.
(26)
Sales Receipt:
The term “Sales Receipt” shall mean that certain purchase transaction
in which the Customer pays for the SOFTWARE as confirmed by BABBLE SOFT, LLC
using electronic receipt.
(27)
System:
The term “System” shall mean that certain computer used by Customer
to load, install, and run the SOFTWARE.
ARTICLE
II: SOFTWARE
Section
2.01 -- Grant of License:
BABBLE SOFT, LLC hereby grants to
Customer a non-exclusive and non-transferable license to use SOFTWARE
and to use the Documentation for the License Term, subject to the terms and
provisions of this Agreement.
Section
2.02 -- Delivery:
Customer hereby acknowledges BABBLE SOFT, LLC
shall deliver SOFTWARE on the Delivery
Date.
Section
2.03 -- Implementation:
Customer shall install the SOFTWARE.
Customer shall implement SOFTWARE on the
System, subject to the terms and conditions of this Agreement.
Section
2.04 -- Acceptance:
SOFTWARE shall be deemed accepted by
Customer ten (10) days after the Delivery Date unless Defect Notice is received
by BABBLE SOFT, LLC by such tenth day.
Upon receiving Defect Notice from Customer, BABBLE
SOFT, LLC shall review the asserted Defect to determine if the Defect is
valid. If, in the reasonable
professional judgment of BABBLE SOFT, LLC the
asserted Defect is valid, BABBLE SOFT, LLC
shall correct the Defect and resubmit SOFTWARE
for acceptance by Customer. If, in
the reasonable professional judgment of BABBLE SOFT,
LLC the asserted Defect is not valid, BABBLE
SOFT, LLC shall submit to Customer a written explanation of the reasons
why such asserted Defect is not valid. The written explanation of BABBLE
SOFT, LLC set forth herein shall be deemed accepted by Customer within
ten (10) days after receipt by Customer of such written explanation unless BABBLE
SOFT, LLC receives from Customer written notice rejecting such
explanation and terminating this Agreement within such ten (10) day period.
Upon receipt of Defect Notice from Customer by BABBLE
SOFT, LLC as set forth above, SOFTWARE
shall be deemed accepted by Customer except as to the asserted Defects specified
in the Defect Notice.
Section
2.05 -- Risk of Loss:
Customer shall assume risk of loss to SOFTWARE
as of the Delivery Date. Customer
shall keep SOFTWARE protected and in good
working order, maintained and insured against loss for full replacement value
until the date that the Price is paid in full by Customer.
Section 2.06 -- Authorized
Use:
Customer shall prevent Unauthorized Users from accessing SOFTWARE.
Customer shall prevent Unauthorized Access to SOFTWARE.
Customer shall promptly inform BABBLE SOFT, LLC
of any and all Unauthorized Access (or suspected Unauthorized Access) and
Unauthorized Users (or suspected Unauthorized Users) of which Customer has
knowledge or suspicion. Access to SOFTWARE
using third party products for purposes of manipulating, viewing, disclosing or
using the internal structure of SOFTWARE™
or for creating a database, data dictionary or data model shall be deemed
Unauthorized Access.
Section
2.07 -- Site Restriction:
Customer shall use SOFTWARE only on
the System.
Section
2.08 -- End Use:
Customer hereby represents and warrants that SOFTWARE
is being licensed by Customer for its own use and not for rental, leasing,
resale, sublicensing, distribution, outsourcing, or offering service bureau
services.
Section
2.09 -- Services:
Customer may request Services, as approved by BABBLE
SOFT, LLC. All Services
shall be subject to the discretion of BABBLE SOFT,
LLC and shall be subject to BABBLE SOFT,
LLC’s standard service terms and applicable time and material rates.
ARTICLE
III: PAYMENT
Section
3.01 -- Price:
Customer shall pay the Deposit on the Effective Date.
Customer shall pay the difference between the Price and the Deposit on
the Delivery Date.
Section
3.02 -- Documentation Fee:
Additional copies of the Documentation may be purchased by Customer from BABBLE
SOFT, LLC upon request by Customer and upon payment of the Documentation
Fee.
Section
3.03 -- Costs:
Customer shall pay all costs incurred by BABBLE
SOFT, LLC in performing this Agreement. Such costs shall include (without
limitation) postage, freight, telecommunications, fees charged by third parties,
telephone, travel, lodging, per diem, material and reproduction costs.
Section
3.04 -- Taxes:
Customer shall pay any and all taxes attributable to this Agreement, to
the transactions contemplated hereunder or to the transactions performed by
Customer or third parties using SOFTWARE,
including, without limitation, any applicable sales or use taxes.
Notwithstanding the foregoing, Customer shall not be responsible for
paying any income taxes assessed against BABBLE
SOFT, LLC.
Section
3.05 -- Late Fee:
Any amount which is not paid when due shall be increased by a late charge
equal to 1% of such unpaid amount for each month (or portion thereof)
in which such amount is due and not paid.
Section
3.06 -- Invoicing and Payment:
Services shall be performed by BABBLE SOFT,
LLC at the time and material rates of BABBLE
SOFT, LLC prevailing at the time such Services are rendered.
BABBLE SOFT, LLC shall invoice
Customer for fees and costs in connection with the Services.
Customer shall pay any such invoice in full on the due date thereof or
within thirty (30) days of receiving such invoice (whichever is earlier).
ARTICLE
IV: TERMINATION
Section
4.01 -- Termination Limitations:
This Agreement shall only be terminated or canceled as provided under
this Article IV.
Section
4.02 -- Term:
This Agreement shall be valid for the Term.
Section
4.03 -- Termination:
Customer may terminate this Agreement for convenience upon providing ten
(10) days written notice of termination to BABBLE
SOFT, LLC, subject to the terms and provisions of this Agreement.
Section
4.04 -- Cancellation for Cause:
If Customer violates its obligations under this Agreement, BABBLE
SOFT, LLC may cancel this Agreement by sending Cancellation Notice
describing the noncompliance to Customer. Upon
receiving Cancellation Notice, Customer shall have ten (10) days from the date
of such notice to cure any such noncompliance. If such noncompliance is not
cured within the required ten (10) day period, BABBLE
SOFT, LLC shall have the right to cancel this Agreement as of the
eleventh day after the date of the Cancellation Notice.
Section
4.05 -- Return:
Upon termination or cancellation of this Agreement, Customer shall
promptly remove (at Customer’s expense) all customer information and data
stored in SOFTWARE and return to BABBLE
SOFT, LLC the SOFTWARE, the
Documentation and all BABBLE SOFT, LLC
materials provided by BABBLE SOFT, LLC to
Customer hereunder and shall provide BABBLE SOFT,
LLC with a certificate of compliance with this Section 4.05 signed by an
authorized representative of Customer. Orders
under the Sales Receipt terminated or cancelled by Customer or changes made by
Customer within ten (10) days after the Effective Date or before implementation
of SOFTWARE on the System has started
(whichever is earlier) are subject to BABBLE SOFT,
LLC’s and Manufacturer’s standard return and refund policy in effect,
including (without limitation) restocking fees and other applicable fees.
Upon termination or cancellation of this Agreement ten (10) days after
the Effective Date or after implementation of the
SOFTWARE, BABBLE SOFT, LLC shall be entitled
to retain all payments rendered to BABBLE SOFT, LLC
under this Agreement, including (without limitation) the Deposit, the Price,
payment for the Services, and payments in anticipation of Services.
ARTICLE
V: WARRANTY
Section
5.01 -- Warranty: BABBLE SOFT, LLC
represents and warrants that SOFTWARE shall
perform substantially as represented in the Documentation for the Warranty Term.
Customer’s exclusive remedy for breach of warranty shall be
modification or replacement of SOFTWARE, as
determined by BABBLE SOFT, LLC.
Section
5.02 -- Third Party Warranties:
BABBLE SOFT, LLC hereby assigns to
Customer the benefit of any and all Manufacturer warranties for the Third Party
Technology and may cooperate (as determined by BABBLE
SOFT, LLC) with Customer in securing the benefit of any remedies
available to Customer under any such Manufacturer warranty.
Section
5.03 -- Service Warranty:
Any Services provided by BABBLE SOFT, LLC
pursuant to this Agreement shall be performed on a reasonable efforts basis in a
timely and professional manner and shall conform to the standards generally
observed in the industry for similar Services and shall be subject to Sections
5.01, 5.04, 5.05 and 5.08.
SECTION 5.04 -- DISCLAIMER:
THE WARRANTIES SET FORTH IN SECTIONS 5.01 AND 5.03 ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, AND BABBLE
SOFT, LLC HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY AND ALL
IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF
MERCHANTABILITY.
Section
5.05 -- Express Warranties:
Customer hereby acknowledges and agrees that BABBLE
SOFT, LLC (including BABBLE SOFT, LLC
officers, employees, agents, directors, independent contractors, affiliates,
distributors and successors) has not made or granted any express warranties
concerning the System, the Services and SOFTWARE
except as expressly set forth in Sections 5.01 and 5.03 of this Agreement.
Section
5.06 -- Third Party Claims:
If a final judgment from a court of competent jurisdiction is entered
against Customer upholding claims that SOFTWARE
violates a United States patent, copyright, trade secret or other proprietary
rights of a third party in the United States, provided that Customer gives BABBLE
SOFT, LLC prompt written notice upon Customer’s knowledge of any such
claim, permits BABBLE SOFT, LLC to answer and
defend (at BABBLE SOFT, LLC’s option) such
claim or action and provides BABBLE SOFT, LLC
with information, assistance and authority to assist BABBLE
SOFT, LLC in the defense of such claim or action, BABBLE
SOFT, LLC shall perform one or more of the following actions (as
determined by BABBLE SOFT, LLC) within one
year of the date final judgment in favor of such third party’s claim is
rendered by a court of competent jurisdiction:
(1)
Replacement: Replace SOFTWARE
with a non-infringing SOFTWARE product of
substantially equivalent functional and performance capability;
(2)
Modification: Modify SOFTWARE
to avoid the infringement without substantially eliminating the functional and
performance capabilities of SOFTWARE;
(3)
Obtain Agreement: Obtain
a license for use of SOFTWARE from the third
party claiming infringement for use of SOFTWARE.
BABBLE SOFT, LLC shall have
the right to participate or assume the defense (as determined by BABBLE
SOFT, LLC) and Customer shall permit and authorize BABBLE
SOFT, LLC to participate in or assume the defense of any such claim or
action through legal counsel. The
foregoing remedy does not apply and BABBLE SOFT, LLC
shall have no obligation in connection with or relating to any third party
infringement claim in connection with or related to (i) Customer’s
modification of SOFTWARE; (ii) Customer’s
failure to use SOFTWARE in accordance with
the Documentation in effect; (iii) Customer’s failure to use the most current
release or version of SOFTWARE; (iv)
Customer’s combination, interface, operation or use of SOFTWARE
with Third Party Technology; and (v) BABBLE SOFT,
LLC compliance with designs, instructions, or specifications required by
Customer. The remedies set forth herein shall be the sole and exclusive
remedies of Customer under this Agreement for any and all claims of
indemnification relating to infringement. BABBLE
SOFT, LLC’s obligations set forth in this Section 5.06 shall not apply
to the Third Party Technology.
Section
5.07 -- Remedies:
The exclusive remedy of Customer for any reason and for any cause of
action whatsoever in connection with or relating to this Agreement, the System, SOFTWARE
or any transaction involving SOFTWARE,
regardless of the form of action, whether in contract or in tort, including
negligence and breach of warranty, shall be limited to repair or replacement of SOFTWARE
as determined by BABBLE SOFT, LLC.
Section 5.08 -- Limitation of Damages: BABBLE
SOFT, LLC shall not be liable to Customer
in connection with or relating to this Agreement, the System, SOFTWARE
and any transactions involving SOFTWARE for
any direct, indirect, lost profits, consequential, exemplary, incidental or
punitive damages, regardless of the form of action, whether in contract or in
tort, including breach of warranty and negligence, regardless of whether BABBLE
SOFT, LLC has been advised of the possibility of such damages in advance
or whether such damages are reasonably foreseeable. Notwithstanding anything to the contrary, the liability of BABBLE
SOFT, LLC for any reason and for any cause of action whatsoever in
connection with or relating to this Agreement, the System SOFTWARE
and any transactions involving SOFTWARE shall
be limited to the license fee for SOFTWARE.
Section
5.09 -- Force Majeure:
BABBLE SOFT, LLC shall not be liable
for any failure by BABBLE SOFT, LLC to
perform its obligations under this Agreement because of circumstances beyond the
reasonable control of BABBLE SOFT, LLC, which
such circumstances shall include (without limitation) natural disaster,
terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any
government, governmental authority or third party, declarations of governments,
transportation delays, power failure, computer failure, telecommunications
failure, Third Party Technology, failure of Customer to cooperate with the
reasonable requests of BABBLE SOFT, LLC,
misuse of the System or SOFTWARE by Customer
or third party, breach of this Agreement by Customer or a third party and any
other events reasonably beyond the control of BABBLE
SOFT, LLC.
Section
5.10 -- Customer Indemnification:
Customer shall release, defend, indemnify and hold harmless BABBLE
SOFT, LLC (including its officers, directors, employees, affiliates,
independent contractors, distributors, agents and successors) against any
expense, loss, cost or liability (including, without limitation, interest,
penalties, attorney fees and paralegal fees) arising from any and all claims,
demands, damages or actions resulting from or related to (1) use of SOFTWARE
by Customer, (including, without limitation, any claim regarding use of SOFTWARE
by Customer in an infringing manner or any claim by third parties for
breach of warranty, negligence, loss of data, libel, slander, unfair
competition, trademark infringement, or invasion of privacy); (2) performance of
SOFTWARE; (3) Customer’s negligence or the
acts (or any failure to act) of Customer hereunder; (4) any breach by Customer
of the obligations of Customer hereunder; and (5) investigation or defense of
any of the above or in asserting BABBLE SOFT,
LLC’s rights hereunder.
Section
5.11 -- Cooperation:
Customer shall cooperate with BABBLE SOFT,
LLC by providing BABBLE SOFT, LLC with
information concerning SOFTWARE and the
System as may be requested by BABBLE SOFT, LLC
from time to time and by providing BABBLE SOFT, LLC
with unrestricted access to the personnel, facilities, computers, computer SOFTWARE
and data of Customer.
Section
5.12 -- Maintenance:
Customer hereby acknowledges and agrees that Customer shall solely be
responsible for acquiring, installing, implementing, updating, upgrading,
maintaining and replacing the System and all Third Party Technology for any
reason, including (without limitation) for Updates or correction of Defects,
including (without limitation) all costs, fees, taxes and payments in connection
therewith or related thereto.
ARTICLE
VI: INTELLECTUAL PROPERTY
Section
6.01 -- Ownership and Title:
Title to SOFTWARE, including all
ownership rights to patents, copyrights, trademarks and trade secrets therein or
in connection therewith shall be the exclusive property of BABBLE
SOFT, LLC. Customer hereby
assigns, transfers and conveys to BABBLE SOFT, LLC
any and all rights, title and interests Customer may have or accrue in SOFTWARE,
including (without limitation) any and all ownership rights to patents,
copyrights, trademarks and trade secrets therein or in connection therewith.
Section
6.02 -- Confidential Information:
SOFTWARE shall be deemed Confidential
Information of BABBLE SOFT, LLC.
Customer shall maintain the Confidential Information in strict
confidence. Customer shall not
disclose Confidential Information except to Authorized Persons. Customer shall
not access, duplicate or use the Confidential Information except as otherwise
permitted under this Agreement.
Section
6.03 -- Trade Secrets:
Customer hereby acknowledges and agrees that the Confidential Information
(i) derives independent economic value (actual or potential) from not being
generally known to, or readily ascertainable by, other persons who can obtain
economic value from its disclosure or use; (ii) is the subject of reasonable
efforts by BABBLE SOFT, LLC under the
circumstances to maintain its secrecy; and (iii) is a trade secret as defined
under Chapter 688 of the Florida Statutes [§688.002(4)] and the Restatements.
Section
6.04 -- Reverse Engineering:
Customer shall not reverse engineer SOFTWARE
and shall not allow SOFTWARE to be reverse
engineered.
Section
6.05 -- Backup Copy:
Customer may create one copy of SOFTWARE
(excluding the printed Documentation) only for routine archival or backup
purposes.
Section
6.06 -- Copies:
Except as provided in Section 6.05, Customer shall not copy SOFTWARE
and shall not allow SOFTWARE to be copied
without the prior written consent of BABBLE SOFT,
LLC.
Section
6.07 -- Modifications:
Customer shall not modify SOFTWARE and
shall not allow SOFTWARE to be modified
without the prior written consent of BABBLE SOFT,
LLC. Customer shall not use SOFTWARE
or any materials incident thereto to develop computer SOFTWARE
without the prior written consent of BABBLE SOFT,
LLC. If SOFTWARE
is modified, such modifications shall be the sole and exclusive property of BABBLE
SOFT, LLC and BABBLE SOFT, LLC shall
own any and all rights, title and interests to such modifications and any
resulting computer SOFTWARE, including
(without limitation) any and all copyrights, patents and trade secrets therein
or in connection therewith.
Section
6.08 -- No Contest:
Customer shall not contest or aid in contesting the ownership or validity
of the trademarks, service marks, trade secrets, or copyrights of BABBLE
SOFT, LLC.
Section
6.09 -- Employee Pirating:
Customer shall not induce or solicit (directly or indirectly) any
Associate to leave the employ or hire of BABBLE
SOFT, LLC. Customer shall
not engage (directly or indirectly) the services of such Associate (as an
employee, consultant, independent contractor, or otherwise) without the advance
written consent of BABBLE SOFT, LLC.
Section
6.10 -- U.S. Government Restricted Rights: If Customer is the U.S.
Government or an agency or department thereof (collectively “Government”), SOFTWARE
is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the
Government is subject to restrictions as set forth in subparagraphs (c)(1) and
(2) of the Commercial Computer SOFTWARE
Restricted Rights clause at 48 C.F.R. 52.227-19.
Section
6.11 -- Proprietary Notices:
Customer shall not remove, alter or obscure any copyright notices or
other proprietary legends displayed by or used by BABBLE
SOFT, LLC in connection with or related to SOFTWARE.
Section
6.12 -- Trademarks:
BABBLE SOFT, LLC trademarks, trade
dress, logos, tradenames or insignia (“BABBLE
SOFT, LLC Marks”), including (without limitation) SOFTWARE,
are owned exclusively by BABBLE SOFT, LLC.
BABBLE SOFT, LLC shall retain all
rights, title and ownership interests in BABBLE
SOFT, LLC Marks. Customer shall not (directly or indirectly) use any
trademark, tradename, trade dress, insignia or logo that is similar to or a
colorable imitation of any BABBLE SOFT, LLC
Marks.
Section
6.13 -- Continuation:
The terms and conditions of this Article VI shall survive termination and
cancellation of this Agreement.
ARTICLE
VII: MISCELLANEOUS
Section
7.01 -- Assignments:
All assignments of rights under this Agreement by Customer without the
prior written consent of BABBLE SOFT, LLC
shall be void.
Section
7.02 -- Public Announcement:
All public announcements of the relationship of BABBLE
SOFT, LLC and Customer under this Agreement shall be subject to the prior
written approval of BABBLE SOFT, LLC. BABBLE
SOFT, LLC shall have the right to use the name of Customer as a reference
for marketing purposes in connection with SOFTWARE.
Section
7.03 -- Entire Agreement:
This Agreement and the Sales Receipt contain the entire understanding of
the parties and supersede previous verbal and written agreements between the
parties concerning the System and SOFTWARE.
In the event of a conflict between the terms of this Agreement and the
terms of the Sales Receipt, the terms of this Agreement shall prevail.
Section
7.04 -- Amendments and Modifications:
Alterations, modifications or amendments of a provision of this Agreement
shall not be binding unless such alteration, modification or amendment is in
writing and signed by BABBLE SOFT, LLC and
Customer.
Section
7.05 -- Severability:
If a provision of this Agreement is rendered invalid, the remaining
provisions shall remain in full force and effect.
Section
7.06 -- Captions:
The headings and captions of this Agreement are inserted for convenience
of reference and do not define, limit or describe the scope or intent of this
Agreement or any particular section, paragraph, or provision thereof.
Section
7.07 -- Counterparts:
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Section
7.08 -- Governing Law:
This Agreement shall be governed by the laws of the State of Texas
without regard to any rules of conflict or choice of laws which require
the application of laws of another jurisdiction and venue shall be in Travis
County.
Section
7.09 -- Notice:
Notices shall be in writing and shall be deemed delivered when delivered
by commercial overnight delivery service, by courier, Certified or Registered
Mail with Return Receipt Requested or by hand to the address set forth below for
BABBLE SOFT, LLC and to the address set forth
on the Sales Receipt for Customer. Notice shall be deemed given on the date of
receipt - as evidenced in the case of Certified or Registered Mail by Return
Receipt.
BABBLE
SOFT, LLC
P.O. Box
500134
Austin, Texas 78750
Section
7.10 -- Pronouns/Gender:
Pronouns and nouns shall refer to the masculine, feminine, neuter,
singular or plural as the context shall require.
Section
7.11 -- Bankruptcy:
If BABBLE SOFT, LLC must institute,
defend, appear or attend a bankruptcy proceeding as a result of the filing of
bankruptcy by Customer, fees and expenses shall be paid by Customer.
If Customer has a bankruptcy proceeding filed against it, BABBLE
SOFT, LLC shall recover attorney fees, expert witness fees, and other
costs incurred by BABBLE SOFT, LLC in
connection with the bankruptcy proceeding, hearing or trial.
Section
7.12 -- Waiver:
Any waiver of a provision of this Agreement by BABBLE
SOFT, LLC shall not be binding unless such waiver is in writing and
signed by BABBLE SOFT, LLC.
Waiver by BABBLE SOFT, LLC of any
breach of this Agreement shall not constitute waiver of any other breach. Any failure by BABBLE SOFT, LLC
to enforce a provision of this Agreement shall not constitute a waiver or create
an estoppel from enforcing such provision.
Section
7.13 -- Relationship of the Parties:
It is agreed that the relationship of BABBLE
SOFT, LLC and Customer is primarily that of licensor and licensee or
seller and customer respectively. Nothing
herein shall be construed as creating a partnership, an employment relationship,
or an agency relationship between the parties, or as authorizing either party to
act as agent for the other. Each
party shall maintain its separate identity.
Section
7.14 -- Arbitration:
Any controversy or claim arising out of or relating to this Agreement, or
breach thereof, shall be settled by arbitration in accordance with the
Arbitration Rules of the American Arbitration Association in Austin,
Texas. Judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties in
accordance with the Arbitration Rules of MyTechnologyLawyer.com.
Each party shall have the right of discovery as set forth in the Federal
Rules of Civil Procedure. The Arbitration shall be administered by
MyTechnologyLawyer.com.
Section
7.15 -- Assurances:
Each party hereby represents and warrants that all representations,
warranties, recitals, statements and information provided to the other under
this Agreement are true, correct and accurate as of the Effective Date to the
best of their knowledge.
Section
7.16 -- Litigation Expense:
In the event of litigation or arbitration arising out of this Agreement,
each party shall pay its own costs and expenses of litigation or arbitration
(excluding fees and expenses of arbitrators and administrative fees and expenses
of arbitration).
Section 7.17 -- Equitable Remedies: The parties hereby acknowledge that damages at law may be an
inadequate remedy to BABBLE SOFT, LLC.
BABBLE SOFT, LLC shall have the right
of specific performance, injunction or other equitable remedy in the event of a
breach or threatened breach of this Agreement by Customer.