This License Agreement (the “Agreement”) acompanies the Cloudberry and MSP360 Service Agreement (the “Service Agreement”) by and between MSBYTES, Corp., a Delaware corporation d/b/a MSP360 (“Licensor”) and Customer (hereinafter “Licensee”), and applies where Licensee has elected to resell or rebrand the Software under Licensee’s name. All capitalized terms not defined herein shall have the meaning ascribed to them in the Service Agreement. Notwithstanding Section 17.10 of the Service Agreement, in the event of a conflict between the provisions of this Agreement and the Service Agreement with respect to the subject matter addressed herein, the provisions of this Agreement shall control.
"Confidential Information" means all information contained in or pertaining to the Software or Documentation, or the use thereof, which is provided by Licensor to Licensee and which is not readily available to the general public.
"Documentation" means the information and specifications describing the functionality of the Software which are furnished to Licensee by Licensor in connection with the Software.
"Intellectual Property" means (i) all inventions and all patents, patent applications, and patent disclosures, (ii) all copyrightable works, all copyrights, and all applications and registrations, (iii) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, technical data, and specifications), (iv) all trademarks, service marks, trade dress, logos, and trade names, and all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, and (v) all copies and tangible embodiments thereof (in whatever form or medium); together with remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions including the right to sue for, collect damages, settle and release claims for past, present, and future infringement, including without limitation, the right to sue to enjoin infringement.
"Licensee Content" means all data and information from any customer of Licensee, and all information and data of Licensee, to include Licensee’s Intellecutal Property, used for purposes of reselling or rebranding the Software.
"Software" means the MSP360 Managed Backup or Subscription Services as more fully described in the Service Agreement.
Subject to the terms hereof, Licensor grants to Licensee, and Licensee accepts from Licensor a non-exclusive, non-sublicensable, and non-transferable license to use the Software and the Documentation with respect to the business of Licensee. Licensee shall not: (a) modify (except for purposes of reselling or rebranding the Software using Licensee Content), copy, create derivative works, translate, reverse engineer or assemble, decompile or disassemble the Software or the Documentation; (b) work around any technical limitations in the Software; (c) make additional copies of the Software or Documentation for use by any third party. Notwithstnading the generality of the forgoing, Licnesee acknowledges and agrees that Licensee is solely responsible for compliance with all obigations of a Customer (as defined in the MSP360 Data Processing Agreement).
Licensee acknowledges that the Software and Documentation have been developed by Licensor by means of substantial expense and effort, that such Software and Documentation are valuable proprietary assets of Licensor, and that disclosure of the Software or Documentation or any Confidential Information would cause substantial and irreparable injury to Licensor. Except in accordance with this Agreement, or written permission otherwise obtained from Licensor, Licensee agrees and warrants that Licensee and Licensee's employees, representatives and agents will not, either directly or indirectly, use, disclose, copy, modify, or distribute the Software or Documentation or any Confidential Information, either for their own benefit or for the benefit of anyone else. Licensee shall take all measures necessary or appropriate to protect confidentiality and to prevent disclosure and use except strictly for Licensee's internal business as provided herein.
Licensor warrants that (a) it has authority to grant the rights in Section 2 above; and (b) to Licensor's knowledge, the Software and the Documentation do not infringe any United States patent or copyright; and (c) for a period of thirty (30) days after the date Licensee commences use of the Software in Licensee’s business or otherwise accepts the Software (the “Warranty Period”), the Software will perform in accordance with the Documentation, provided that Licensee meets the specifications and requirements for use of the Software as set forth in the Documentation. Licensor does not warrant that the Software will perform in accordance with any specifications submitted to Licensor by Licensee or any third party. Any warranty made will be voided if Licensee uses or modifies the Software or Documentation in any manner not consistent with the terms of this Agreement.
Except as expressly provided in this agreement, licensor makes no other warranties concerning the software, the documentation, or any other services provided under this agreement, whether express or implied, including, without limitation, any warranty of merchantability, fitness for a particular purpose, or non-infringement.
If the Software does not conform to the limited warranty set out above, Licensor will, at its option: (a) if there is a default in the infringement warranty, (i) correct or replace the Software so there is no infringement, (ii) procure for Licensee the right to continue using the Software, or (iii) refund the License Fee, less the reasonable value of the use of the Software by Licensee; or (b) if the defect is in the performance warranty, correct or replace the Software so that the Software performs in accordance with the warranty provided that Licensee has given notice to Licensor within the Warranty Period.
The remedies specified in Section 8 are Licensee's sole and exclusive remedies and will satisfy all of Licensor's liabilities, whether based on contract, negligence, tort, product liability, strict liability or otherwise. EXCEPT WITH RESPECT TO LICENSEE’S USE OF THE SOFTWARE OUTSIDE OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 2, OR LICENSEE’S BREACH OF LICENSEE’S OBLIGATIONS UNDER SECTION 5, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT, OR IN FURTHERANCE OF THE PROVISIONS AND OBJECTIVES OF THIS AGREEMENT, WHETHER SUCH DAMAGES ARE BASED ON TORT, CONTRACT, OR ANY OTHER LEGAL THEORY AND WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR'S CUMULATIVE LIABILITY HEREUNDER EXCEED THE AMOUNT OF THE LICENSE FEE PAID BY LICENSEE TO LICENSOR. Licensee recognizes that the provisions of Sections 6 through 9 are a material factor in Licensor's determination of the License Fee.
If Licensor defaults in the performance of any of Licensor's obligations under this Agreement, Licensee shall give written notice of such default to Licensor. Licensor, at its option, shall have thirty (30) days following receipt of Licensee's notice to either correct such default, or if such default cannot reasonably be corrected within thirty (30) days, to present a plan to Licensee for correction of such default. If Licensor and Licensee cannot agree to such a plan within sixty (60) days of Licensee's notice of default, then either party may terminate this Agreement. Licensee may not unreasonably withhold consent to such a plan.
Either party may terminate this Agreement upon ninety (90) days prior written notice. If Licensee terminates this Agreement for convenience, Licensee shall not be entitled to a refund of the License Fee paid prior to termination.
11.1 Upon termination of this Agreement, Licensee will (a) no longer be permitted to access or use the Software and will cease using the Documentation and the Licensor' Confidential Information; (b) return or destroy, at Licensee's expense (without making copies thereof), all materials (and all copies thereof) related to the Software, Documentation, and the Licensor Confidential Information; (c) destroy or purge any electronic copies or media relating to or embodying the Software, Documentation or Licensor Confidential Information; and (d) provide Licensor with written notification, signed by a duly authorized representative of Licensee certifying that the Software, Documentation, and the Confidential Information have been so removed or destroyed from Licensee's possession and that no other copies of such materials exist in Licensee's possession.
11.2 Upon termination of this Agreement, Licensor shall promptly return any and all of Licensee’s Content to Licensee.
11.3 Except as otherwise specifically provided in this Agreement, upon the effective date of termination, all other rights and obligations under this Agreement shall cease except the rights and obligations of either party with respect to any breach of this Agreement, and the rights and obligations under Sections 3, 5, 8, 9, 10, 11, 12, and 13.
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any choice or conflict of law provision.
13.1 This Agreement (a) may be amended only by a writing signed by both parties, and (b) contains the entire understanding between the parties regarding the subject matter hereof and supersedes any prior discussions or Agreements concerning such subject matter.
13.2 Licensee shall not have any right or ability to assign or transfer its rights or obligations under this Agreement without the written consent of the Licensor (and any unauthorized purported assignment will be void), except that Licensee may assign and transfer this Agreement and its rights and obligations hereunder to any third party who succeeds to substantially all its business or assets (or substantially all of the business or assets of a division or business segment associated with the license provided pursuant to this Agreement), or to any entity that it controls, is controlled by, or under common control with; provided, however, that Licensee provides written notice within thirty (30) days. This Agreement may be freely assigned or delegated by Licensor, in whole or in part.
13.3 No delay in enforcement or extension of time or failure to exercise any right hereunder will be deemed to be a waiver of any right by either party. No waiver of any earlier breach of this Agreement will be construed as a waiver of a later breach.
13.4 Licensor hereby objects to and will not agree to any additional or conflicting terms contained in any of Licensee's past or future proposals, purchase orders or other communications.
13.5 Licensor will not be liable for failure to deliver or delays caused by acts of God, labor difficulties, transportation difficulties, laws, government regulations or requests, or any other cause beyond Licensor's control.
13.6 If any part of this Agreement is found to be unenforceable by a court of competent jurisdiction, such part will be construed by limiting and enforcing it to the maximum extent compatible with the applicable law.