PLEASE READ CAREFULLY: THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND/OR YOUR ORGANIZATION (“CUSTOMER”), AND NORSTAN COMMUNICATIONS, INC. d/b/a BLACK BOX NETWORK SERVICES (“BLACK BOX”). USE OF THE SOFTWARE AND ASSOCIATED DOCUMENTATION IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE SERVICES CONTRACT.
A. GENERAL SOFTWARE TERMS
2. INTELLECTUAL PROPERTY OWNERSHIP
Aspect, its affiliates or licensors own and retain all right, title and interest to and in all Intellectual Property in all Products, Services, Documentation, Deliverables, developments, research data, designs, layout, processes, formulae, mask works, documents, drawings, specifications and other Aspect information, proprietary materials and all derivative works. To the extent that any right, title or interest in or to any Aspect’s Intellectual Property may not automatically vest in Aspect by operation of law, Customer irrevocably transfers, assigns and conveys all right, title, and interest to Aspect. At Aspect’s request and expense Customer will promptly take any action and execute any documents necessary to vest full title in Aspect or its licensor. Notwithstanding anything to the contrary, Aspect reserves the right to enforce its rights and remedies to protect its Intellectual Property.
(a) Confidential Information. Whether or not disclosed orally or marked as confidential, Confidential Information includes the Agreement; Order Documents, Products, Deliverables and Services; either party’s non-public data or personally identifiable information regarding employees or customer(s) residing on the party’s computer systems; Intellectual Property, and Black Box’s and/or Aspect’s proposals, specifications, manuals, product roadmaps, financial data, pricing, and results of benchmark tests. Confidential Information does not include information that is (i) publicly available without breach of the Agreement; (ii) reasonably shown to Disclosing Party’s satisfaction to have been known by Receiving Party prior to disclosure or independently developed by Receiving Party subsequent to disclosure without breach of these terms; or (iii) obtained by Receiving Party from a third party without confidentiality obligation. Software Products are not deemed to be placed in the public domain by Black Box and/or Aspect. Receiving Party will promptly notify Disclosing Party if it is compelled by a court to disclose Confidential Information and will take any reasonable action requested to maintain the confidentiality of the Confidential Information.
(b) Non-disclosure. Customer will use best efforts to prevent disclosure to Black Box and/or Aspect of any personally identifiable information regarding Customer’s employees or customer(s). Receiving Party will use Disclosing Party's Confidential Information solely to perform its obligations under this Agreement. Receiving Party will take all reasonable steps to safeguard Disclosing Party's Confidential Information, including no less than the steps taken to protect its own Confidential Information. Receiving Party must not disclose Disclosing Party's Confidential Information except to its employees, affiliates and contractors bound by written confidentiality obligations no less restrictive than these terms. Receiving Party must promptly notify Disclosing Party in writing of unauthorized use or disclosure of Confidential Information. Receiving Party, at its expense, must take all reasonable action to recover Confidential Information and prevent further unauthorized use or disclosure, including action for seizure and injunctive relief. If Receiving Party fails to do so in a timely manner, Disclosing Party may take any reasonable steps at Receiving Party's expense, and Receiving Party must reasonably cooperate.
4. INTELLECTUAL PROPERTY INDEMNIFICATION
(a) By Black Box.
(i) Black Box will defend, at its expense, a third party legal action, suit or proceeding against Customer (“Claim”) to the extent that Software or Aspect proprietary hardware as delivered by Black Box and/or Aspect to Customer (“Indemnified Product”) directly infringes a valid U.S. patent or copyright. Black Box will indemnify Customer for any judgment finally awarded against Customer or settlement agreed by Black Box for such Claim to the extent of the Indemnified Product’s infringement, provided (1) Customer notifies Black Box promptly in writing of the Claim, (2) Black Box has sole control over the defense or settlement, and (3) Customer fully cooperates with Black Box, providing all documents and information in Customer’s possession relevant to the Claim, and Customer makes personnel available to testify or consult with Black Box.
(ii) If Indemnified Product becomes, or in Black Box’s opinion is likely to become subject to a Claim, Black Box may, at its option and expense, (1) acquire the right for Customer to continue using the Indemnified Product, (2) replace or modify the Indemnified Product or create a workaround so that the Indemnified Product is functionally equivalent and non-infringing, or (3) terminate the License for the Indemnified Product and give Customer a credit for the Product Fee paid by Customer for the infringing part of the Indemnified Product, less a reasonable allowance for the time Customer used the Indemnified Product.
(iii) Black Box is not obligated or liable for a Claim due to (1) use of an Indemnified Product not according to the Agreement and Documentation, (2) modification of an Indemnified Product made by anyone other than Black Box and/or Aspect, or modification made by Aspect for non-standard features or functionality for Customer or according to Customer’s directions, (3) any products, equipment, software, or data not supplied by Black Box or Aspect or use of an Indemnified Product combined with any other products, equipment, software, or data not supplied by Black Box or Aspect if infringement would not occur without the combination, (4) a release of Indemnified Product other than the most current release available or Customer’s failure to install a revision, update or release that would have eliminated the infringement, (5) Customer’s designs, instructions, plans or specifications, or (6) use of an Indemnified Product combined with a Customer or third party use, process or method if infringement would not occur without the combination.
(b) By Customer.
(i) Customer will defend, at its expense, a third party claim against Black Box and/or Aspect (1) that any product, information, data or material provided by Customer infringes another party’s intellectual property rights, (2) for which Black Box or Aspect is not liable according to Section 4(a)(iii) above, or (3) arising from Customer’s, its affiliates’ or contractors’ failure to comply with the License or Confidentiality terms of the Agreement.
(ii) Customer will indemnify Black Box and Aspect for any damages or amounts agreed as settlement of the claim, provided (1) Black Box notifies Customer promptly in writing of the claim, (2) Customer has sole control over the defense or settlement, and (3) Black Box and/or Aspect cooperates with Customer, providing all documents and information in Black Box’s or Aspect’s possession relevant to the claim, and Black Box and/or Aspect makes personnel available to testify or consult with Customer.
(c) Assumption of Defense. If a party fails to defend or settle a claim according to this Section 4 in a timely manner, the other party may assume defense of the claim at the indemnifying party’s expense, and the indemnifying party will reasonably cooperate. Neither party may make an admission of fault on behalf of the other party without written consent.
(d) Limitation. THIS SECTION 4 DESCRIBES EACH PARTY’S SOLE LIABILITY AND THE OTHER PARTY’S SOLE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION.
5. LIMITATION OF LIABILITY
NEITHER PARTY, ITS AFFILIATES OR LICENSORS WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, FOR INTERRUPTION OF BUSINESS OR OPERATIONS, COST OF COVER, GOODWILL, LOST DATA OR PROFITS, OR FAILURE OF A REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, WHETHER FORESEEABLE OR UNFORESEEABLE.
(b) WITH THE EXCEPTION OF A CLAIM FOR INFRINGEMENT UNDER SECTION 4(a) OR INJUNCTIVE RELIEF UNDER SECTION 7, OR A CLAIM FOR DEATH OR BODILY INJURY, TANGIBLE PROPERTY DAMAGE, WILLFUL MISCONDUCT, FRAUD, OR CUSTOMER’S FAILURE TO COMPLY WITH THE LICENSE OR PAYMENT TERMS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY, ITS AFFILIATES OR LICENSORS FOR ANY CLAIM EXCEED THE AMOUNT CUSTOMER PAID IN THE PRECEDING 12 MONTHS FOR THE PRODUCT OR SERVICE THAT GAVE RISE TO THE CLAIM, REGARDLESS OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION EXPRESS OR IMPLIED WARRANTY, TORT, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, OR THE USE OR PERFORMANCE OF A PRODUCT OR SERVICE.
(c) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM BROUGHT BY THE OTHER PARTY MORE THAN 12 MONTHS AFTER THE OTHER PARTY BECAME AWARE OF THE ISSUE GIVING RISE TO THE CLAIM. EITHER PARTY’S FAILURE TO EXERCISE A RIGHT OR REMEDY IS NOT A WAIVER.
6. DISPUTE RESOLUTION
The parties will attempt in good faith to resolve any controversy or claim promptly through business discussions and will, upon written request, escalate a dispute to executive management for resolution. If the parties fail to resolve the dispute within thirty (30) days of written request, or any longer period agreed in writing, the parties may pursue the remedies to which they are entitled. This clause will not restrict either party’s right to seek injunctive relief.
7. INJUNCTIVE RELIEF
Customer’s failure to comply with the License or confidentiality terms would result in irreparable harm to Black Box that may be intangible but real and is incapable of complete remedy by award of damages. Customer agrees (a) Black Box has the right to an injunction or other court order and may proceed directly to court to specifically enforce Customer’s obligations, (b) no finding of irreparable harm or other condition to injunctive relief is required, (c) an order may be entered to compel Customer to act or refrain from acting or threatened action, and (d) if an injunction is granted, Customer will pay Black Box’s reasonable expenses and attorney fees, in addition to any other relief granted.
B. LICENSE TERMS
(a) Grant. Black Box grants to Customer a perpetual License for the number of users or other quantity for each Software Product specified in the Order Document, in object code form, and related Documentation. Customer may make a reasonable number of copies of the Software Products solely for non-production backup purposes. Firmware and software provided in or with Equipment are also subject to the License grant and restrictions.
(b) Restrictions. Customer will not:
i. Rent, lease, or sublicense a Software Product, or use a Software Product for hosting as an application service provider;
ii. Permit any third party to access or use a Software Product or Documentation, except for Customer’s affiliates and contractors using a Software Product or Documentation for Customer’s internal business operations, provided Customer (a) ensures its affiliates and contractors comply with the terms of the Agreement and (b) is liable for their acts and omissions;
iii. Transfer or use a Software Product or Documentation to or in a country other than that to which Black Box or Aspect shipped;
iv. Use a Product except as specified in the Documentation;
v. Translate, modify or make derivative works of a Software Product or Documentation.
vi. Reverse engineer, decompile or disassemble a Product, except to the extent permitted by law after Customer has disclosed its intended activities in writing to Black Box;
vii. Use a quantity of Software Product greater than the License Customer purchased;
viii. Use a Software Product in production if provided under a testing, evaluation, development or other non-production License;
ix. Alter a Product’s copyright or other intellectual property rights notices;
x. Use a Third Party Product without the Equipment and Software; or
xi. Infringe or misappropriate Black Box’s and/or Aspect’s or its licensors’ Intellectual Property.
(c) Development License. Customer’s right to use a Product under a Development License is limited to (i) testing Customer modifications to non-Aspect products to be used with an Aspect Product, and (ii) using an Aspect Product in a non-production environment.
(d) Termination. Black Box may terminate a License by written notice (i) immediately, if Customer infringes Aspect’s or its licensors’ Intellectual Property or fails to comply with the License terms; (ii) as specified in the Warranty terms; and (iii) if Customer materially breaches the Agreement, subject to any specified cure period. Upon termination Customer must immediately return or destroy all Software Product and, upon Aspect’s request, provide written certification of such destruction.
(e) Verification. At a date and time agreed, within fifteen (15) days of Black Box’s request but no more than once annually, Customer will provide access to its records and operations to enable Black Box and/or Aspect to verify Customer’s compliance with the Agreement and the Licenses granted. Within fifteen (15) days of invoice date Customer will pay any additional fees due for Software Product used in excess of the License and Black Box’s expenses.