THIS IS A LEGAL AGREEMENT BETWEEN THE EMPLOYEE, INDIVIDUAL OR ENTITY IDENTIFIED AS (“LICENSEE”) AND SUNBIRD SOFTWARE, INC. MAINTAINING ITS PRINCIPAL PLACE OF BUSINESS AT 30 KNIGHTSBRIDGE ROAD, SUITE 620, PISCATAWAY, NJ 08854 ("LICENSOR"). THIS AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH LICENSEE MAY USE THE SOFTWARE (AS DEFINED HEREINAFTER). BY CLICKING ON THE ACCEPT BUTTON, INSTALLING, HAVING SOFTWARE INSTALLED ON LICENSEE’S BEHALF, COPYING, HAVING SOFTWARE COPIED ON LICENSEE’S BEHALF, USING OR HAVING SOFTWARE USED ON LICENSEE’S BEHALF, LICENSEE INDICATES THAT LICENSEE 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 LICENSEE, THE TERMS SET FORTH IN THIS AGREEMENT SHALL APPLY TO LICENSEE AS WELL AS TO THE INDIVIDUAL OR ENTITY INSTALLING, COPYING OR USING “SOFTWARE ON BEHALF OF LICENSEE. THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE EARLIER OF THE DATE SOFTWARE IS INSTALLED OR USED.
1.1. “Documentation” means those visually-readable materials developed by or for SUNBIRD for use in connection with the Software and customarily furnished by SUNBIRD to its Licensees of the Software. Documentation includes, to the extent applicable to the License, user and programming manuals, programmer notes, flow charts, schematics, illustrations, logic diagrams, descriptions of data flows, data structures, operating instructions, input information and format and technical and functional specifications but does not include the source code for the Software.
1.2. “Initial Subscription Term” means the period that this License remains in effect as a result of the initial payment of a Subscription Fee for a new installation of the Software.
1.3. “License Key” means a file generated by SUNBIRD that, when applied to the Software identifies the Licensee to the Software, activates the Software, limits the Software to the License Parameters, and causes other effects.
1.4. “License Parameters” means the definitions and limitations of the applicable license scope to the License found in this Agreement and the Order Documents including, but not limited to, limitations as to the quantity of data center assets the licensed Software may interact with.
1.5. “License” means the grant of the license from SUNBIRD to Licensee under the terms and conditions of this Agreement.
1.6. “Licensed Materials” means the Software and the Documentation.
1.7. “Licensee” means the individual who reads and is prompted to accept this Agreement if that individual acquires the Software for him or herself, or the company, or other legal entity for whom that individual acquires the Software.
1.8. “Non-Production” means the use of the Licensed Materials in a laboratory environment for development, system testing, integration testing, user acceptance testing, performance testing or quality assurance.
1.9. “Order Documents” means documents agreed in writing by SUNBIRD and evidencing SUNBIRD’s and Licensee’s agreement regarding the SUNBIRD Products to be sold and Licensed Materials to be licensed to Licensee, the related license fees, and the License Parameters. The Order Documents may include exhibits, schedules, service orders, purchase orders, invoices and other such documents.
1.10. “Product” means the Licensed Material and the maintenance services.
1.11. “Software” means SUNBIRD computer programs licensed by Licensee under this Agreement comprising a series of instructions, rules, routines, or statements that allow or cause a computer to perform a specific operation or series of operations.
1.12. “Subscription Fee” means the amount Licensee pays for use of the Licensed Materials as described in the Order Documents.
1.13. “Subscription Term” means the Initial Subscription Term and all Renewal Subscription Terms (defined in Section 2.1.1 below).
1.14. “Use” means the act of loading, executing, storing, utilizing, accessing, displaying, reading or otherwise interacting with the Software and/or Documentation.
2.1. Grant of License. SUNBIRD hereby grants to Licensee and Licensee hereby accepts from SUNBIRD a limited, fully paid, worldwide, personal, non-exclusive, non-transferable right and license to Use (i) one copy of the Software for primary production services, (ii) one copy of the Software for secondary production services as a hot standby, (iii) one or more copies of the Software for Non-Production purposes, and (iv) the Documentation applicable to the Software, in each case solely for Licensee's own internal business purposes and subject to the terms and conditions of this Agreement, the Order Documents, and the License Parameters.
2.1.1. Renewal Subscription Term. In the event that the Order Document specifies that the License shall be for a term of years (a “Subscription License”) unless one Party gives the other written notice that it does not intend to renew the subscription, the License granted hereby will renew for one year ("Renewal Subscription Term"). Written notice of non-renewal must be sent no more than ninety (90) days but no less than forty-five (45) days in advance of the end of the current Subscription Term. The Renewal Subscription Term will be on the current terms and conditions of this Agreement. In addition, on renewal, the current product usage limits will apply to Licensee’s subscription, unless otherwise agreed to by Licensee and Sunbird. Should Licensee decide not to renew, it may send the notice of non-renewal by email to orders@sunbirddcim.com. Payment of the applicable Subscription Fee shall be due on the first day of the Initial Subscription Term and of each Renewal Subscription Term.
2.1.2. Maintenance Services. SUNBIRD will provide Licensee with maintenance services for the Software as described in, and pursuant to the terms and conditions set forth in, the Exhibit to this License. If Licensee is purchasing a Subscription License, the maintenance services will be provided during the Subscription Term at no additional charge. Otherwise, the maintenance services will be provided as ordered by Licensee subject to the payment of the fees therefor agreed by the Parties.
2.2. Activation. Licensee must activate the Licensee’s copy of the Software with the License Key in the manner described in the Documentation and as provided for in the Order Documents.
2.3. Restrictions to Use. Licensee agrees that it will not modify any Licensed Materials, create any derivative work based upon the Software or authorize or assist any third party to do so. Licensee agrees that it will not Use the Licensed Materials except as expressly authorized in this Agreement. Licensee agrees that it will not, whether through use of disassemblers or any other means whatsoever (including but not limited to manual, mechanical or electrical means), reverse engineer, decompile, decipher, disassemble or derive source code from the Software, or attempt to or permit any third party to do any of the foregoing, including causing the Software to be destroyed or disabled. Any attempt to do any of these things shall be a material breach of this Agreement.
2.4. Copies. Licensee shall have the right to create, maintain and implement a reasonable number of copies of the Software for back-up and archival purposes. Licensee shall have the right to create and maintain a reasonable number of copies of the Documentation for internal use.
2.5. Rights to Releases. Licensee rights with respect to a Release (as defined in the Exhibit) shall, unless otherwise provided in the accompanying Order Documents, be the same as the previous Release. Licensee is granted a single license for each copy of the Software and that license automatically transfers to the new Release once installed.
2.6. Third Parties. In the event of Use of the Product by third parties, Licensee shall be responsible for ensuring that such third parties comply with the terms and conditions of this Agreement. Licensee shall be liable for a breach of this Agreement by such third parties as if Licensee were the breaching party. Licensee shall hold SUNBIRD harmless from any loss, damage or claim resulting from use of the licensed programs or reliance by any third party upon the results obtained through use of the licensed programs, even if such loss, damage or claim results from the sole or concurrent negligence of SUNBIRD. No warranties shall be made by Licensee (1) to any third party on behalf of SUNBIRD or (2) that are inconsistent with the warranties set forth herein.
2.7. Open Source Software. In addition to the Software, certain other software (the "Open Source Software") is provided licensed as free software. The Open Source Software includes but is not limited to the open source code software known as Linux and open source code software developed by the Apache Software Foundation. Upon written request, Sunbird will provide Licensee with a list of the Open Source packages of Programs, the open source license under which that package has been released, and the original and any modified versions of the source code of the relevant Programs as required by the applicable license. Licensee acknowledges and agrees that its rights and obligations with respect to the Open Source Software are governed by the terms of the applicable licenses. For the avoidance of doubt, Licensee acknowledges and agrees that the terms "Software", "Product", "Documentation" and "License" do not include the Open Source Software or any documentation relating thereto.
2.8. Evaluation.
2.8.1. Scope. Licensee may install and Use one copy of the Software solely for the purpose of evaluating the software to determine whether to purchase a non-evaluation license to the Software. Licensee acknowledges that the Software’s function may be restricted in a number of ways (the “Evaluation Version”). License may not use the Software for any other purpose, including but not limited to competitive analysis, commercial, professional, or for-profit purposes. Licensee may not use the Software in the performance of services, or provide or otherwise make available or permit the use of the Software in any form whatsoever, whether gratuitously or for valuable consideration, to or for the benefit of any other person or entity.
2.8.2. No Warranty for Evaluation. Notwithstanding any provision of this agreement, the evaluation version is provided "AS IS" without warranty of any kind, express or implied, and the Licensor makes no representations whatsoever as to the existence of defects, errors and omissions in the Software. Licensee agrees that there will be no reliance upon the Software for business applications during the Evaluation Period, that Software as it functions during evaluation is not for live production use and that Licensee is solely responsible for the protection and back-up of any of Licensee’s hardware, data and software used in conjunction with the access and operation of the Software.
2.8.3. Termination. Evaluation licenses shall terminate thirty (30) days from the Effective Date or such other time as the Parties may agree in writing. SUNBIRD also may terminate Licensee’s evaluation license upon written notice at any time for any reason without liability of any kind. If Licensee subsequently licenses the non-evaluation version of the software, Licensee’s license to the evaluation version shall immediately terminate and Licensee hereby expressly agrees that this agreement, and the terms and conditions herein shall govern Licensee’s use of any such non-evaluation version.
2.8.4. Evaluation Information. Licensee’s evaluation of the Software may be used in the further development of the Software or other Licensor products, and Licensee waives any claims to any intellectual property rights to information regarding Licensee’s testing and evaluation of the Software that Licensee or any of Licensee’s agents or representative provides to Licensor.
2.9. Interface with Third Party Software.
2.9.1. The Software may include a SUNBIRD Application Programming Interface (the “SUNBIRD API”) to allow Licensee’s custom software applications to interoperate with the Software.
2.9.2. The License Grant of Section 2.1 shall include the right for Licensee to develop or customize software applications that interoperate with the Software through the SUNBIRD API, to have developed or customized by third parties software applications to which Licensee retains all intellectual property rights that interoperate with the Software through the SUNBIRD API, and to interoperate with the particular licensed copy of the Software licensed under this Agreement.
2.9.3. Licensee shall not exploit the SUNBIRD API for any other purpose without SUNBIRD’s prior written consent. Such excluded exploitation of the SUNBIRD API includes, but is not limited to, licensing or selling to any third parties the software applications customized or developed under Section 2.9.2; and, without SUNBIRD’s prior consent, interoperating with Software through the SUNBIRD API with software applications licensed to the Licensee by a third party, wherein the software application has its intellectual property rights retained by the third party and is employed without substantial modification.
3.1. Ownership. As between SUNBIRD and its suppliers on the one hand and Licensee on the other hand, SUNBIRD and/or its suppliers retain title to Licensed Materials (excluding media on which the Licensed Materials are recorded), including all copies, partial copies, compilations or translations thereof made by Licensee and all copyrights, patent rights, trademark rights, trade secrets and other intellectual property rights related thereto, and no title to the Licensed Materials or such intellectual property rights is transferred to Licensee. All suggestions, solutions, improvements, corrections, and other contributions provided by Licensee regarding the Licensed Materials shall become the property of SUNBIRD and Licensee hereby agrees to assign any such rights to Licensee.
3.2. Proprietary Markings. Licensee agrees not remove, alter or obscure any of copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of ownership (the "Marks") from the Licensed Materials. Additionally, Licensee agrees to reproduce and include Marks on any permitted copies of the Licensed Materials, or on any portion thereof.
3.3. Notice of Breach/Infringement. If Licensee acquires actual knowledge of any breach of this Section 3 or any unauthorized access to the Licensed Materials, copyright infringement, trademark infringement, patent infringement, software piracy or other misuse, infringement or misappropriation of SUNBIRD's Intellectual Property Rights, Licensee agrees to immediately notify SUNBIRD. Licensee further agrees to cooperate with SUNBIRD to determine the existence and extent of and to remedy any such unauthorized access, misuse, infringement, misappropriation, piracy or breach.
3.4. Right to Audit. With fifteen (15) days written notice, Licensee shall allow a third party auditor retained by SUNBIRD to enter its premises to verify Licensee’s compliance with the provisions of this Agreement. If Licensee is found not to be in substantial compliance with its obligations under this Agreement, Licensee shall pay the reasonable expenses incurred by SUNBIRD associated with such inspection and shall promptly take measures to come into compliance. Such audit shall not be conducted more frequently than once during any twelve (12) consecutive month period unless a violation of this Agreement was found in the immediately preceding audit. SUNBIRD's rights under this Section 3.5 shall survive for one (1) year following termination or expiration of this Agreement.
4.1. General. The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect for the term set forth in the Order Documents and any extension thereof unless earlier terminated pursuant to the terms of this Agreement.
4.2. Early Termination. Notwithstanding the foregoing, this Agreement and/or the License may be terminated as follows: (a) at any time upon mutual written agreement of the parties; or (b) by either party (the “notifying party”) by written notice to the other party (the “notified party”) if the notified party breaches a material obligation of the notified party under this Agreement and such breach continues uncorrected for a period of thirty (30) days after notice in writing thereof to the notified party.
4.3. Effect of Termination. Upon termination of the license granted hereunder, (a) Licensee shall immediately cease using the Licensed Materials; (b) Licensee shall pay any and all undisputed sums then owing to SUNBIRD hereunder within thirty (30) business days from the effective date of termination; (c) except as required by law, Licensee shall either deliver to SUNBIRD or destroy all applicable Software and related Documentation, together with all copies thereof (including erasing the Software from all memory or data storage apparatus under the control of Licensee); and (d) SUNBIRD will promptly delete any Licensee Confidential Information and any Licensee data from SUNBIRD’s computer storage or any other media including, but not limited to, online and off-line libraries. Upon termination or expiration of this Agreement due to an uncured Event of Default by SUNBIRD or in the event of a Bankruptcy Event by SUNBIRD, Licensee will be entitled to a refund of any payments made by Licensee to SUNBIRD for the Licensed Materials and/or Products not yet received (and a pro-rated portion of any prepaid license fees or maintenance services).
4.4. Survival. The respective rights and obligations of SUNBIRD and Licensee under the provisions of Sections 2.3, 2.6 and 3 will survive termination or expiration of this Agreement.
5.1. Confidentiality. At all times the Receiving Party shall protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own highly confidential and proprietary information (but in no event less than a reasonable degree of care), and shall not use the Confidential Information except as necessary to perform its obligations under this Agreement (the “Limited Purpose”). The Receiving Party may disclose, distribute or disseminate the Confidential Information to its employees and consultants provided that the Receiving Party reasonably believes that those employees and consultants have a need to know and such employees and consultants are bound by confidentiality obligations at least as restrictive as those contained herein. Each Party shall remain at all times responsible for any breach of this Agreement by any of its employees or consultants. The Receiving Party shall not disclose, distribute or disseminate the Confidential Information to any third party without the prior written consent of the Disclosing Party.
5.2. Compelled Disclosure. In the event that the Receiving Party becomes or may become legally compelled to disclose any Confidential Information of the Disclosing Party (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), the Receiving Party shall provide the Disclosing Party with prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Article 5.
5.3. Return of Confidential Information. Promptly following the request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party, or, at the Receiving Party’s option, destroy all materials that are in written, electronic or other tangible form that contain, summarize or abstract any portion of the Confidential Information of the Disclosing Party, including, without limitation, all copies, extracts and derivations of such materials.
5.4. Definition of Confidential Information. For the purposes of this Section 5, “Confidential Information” shall mean all information, in any form, written or oral, furnished or made available directly or indirectly by one Party (the “Disclosing Party”) to the other Party (the Receiving Party”) whether or not so labeled, including but not limited to, all information concerning the Disclosing Party’s: (i) business, finances, and markets; (ii) information technology and computer systems; (iii) products, research, data, and statistics; (iv) personnel, vendors, suppliers, contractors, consultants, and other agents; and (v) security protocol, operations, and procedures; provided, however, that Confidential Information shall not include information: (i) that was known to the Receiving Party prior to its disclosure by the Disclosing Party (evidenced by written records kept in the ordinary course of business) or becomes known to the Receiving Party through a third party without any obligation of confidentiality (evidenced by written records kept in the ordinary course of business); (ii) that is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; (iii) that is publicly available or becomes publicly available through no fault of the Receiving Party; or (iv) is disclosed with the express prior written consent of the Disclosing Party.
5.5. Remedies. The parties acknowledge that the Disclosing Party’s Confidential Information represents unique and valuable assets. The Receiving Party agrees that, in the event of a breach of confidentiality obligations, monetary damages may not be an adequate remedy and the Disclosing Party shall be entitled to seek such other remedies as may be available in law or in equity, including injunctive relief.
6.1. Limited Products Warranty. For a period of thirty (30) days following shipment of the Software, SUNBIRD warrants that the Software, standing alone, without use in combination or conjunction with any third party software or apparatus, and excluding the open Source Software, will perform substantially in accordance with the specifications included in the applicable Documentation. SUNBIRD does not warrant that (a) the Products will meet Licensee’s requirements, will operate in the combinations which may be selected for use by Licensee, will produce the results desired by Licensee, will operate uninterrupted or will operate in an error-free manner or (b) all defects will be corrected or are correctable. This limited warranty will become null and void if the failure of a Product to perform substantially in accordance with the specifications included in the applicable Documentation is a result of an accident, abuse, or misapplication caused by Licensee. SUNBIRD's entire liability and Licensee’s exclusive remedy under this limited warranty is, at SUNBIRD' s option, either (a) return of the fee paid with respect to the applicable Product; or (b) repair or replacement of the applicable Product or any portion thereof that does not conform to the foregoing limited warranties. Any replacement of Product will be warranted in accordance with the terms and conditions of this Section 4 for the remainder of the original warranty period or thirty (30) days, whichever is longer. Notice of a warranty claim must be delivered to SUNBIRD during the applicable warranty period.
6.2. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY. LICENSEE ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SUNBIRD HAS NOT MADE ANY REPRESENTATION OR WARRANTY TO LICENSEE REGARDING THE PRODUCTS, AND/OR OPEN SOURCE SOFTWARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUNBIRD DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY WITH RESPECT TO TITLE, NON¬INFRINGEMENT, MERCHANTABILITY, DESIGN, CONDITION, DURABILITY, PERFORMANCE, QUALITY, CAPACITY OR TECHNICAL COMPATIBILITY OF THE PRODUCTS, AND/OR OPEN SOURCE SOFTWARE OR FITNESS OF THE PRODUCTS, AND/OR OPEN SOURCE SOFTWARE FOR A PARTICULAR PURPOSE. LICENSEE AGREES THAT SUNBIRD WILL NOT BE LIABLE FOR EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHICH ARISE DIRECTLY OR INDIRECTLY OUT OF THE PURCHASE, SALE, USE OF AND/OR INABILITY TO USE THE PRODUCTS, AND/OR OPEN SOURCE SOFTWARE WHETHER SUCH DAMAGES ARE BASED UPON CONTRACT, TORT, INTENTIONAL CONDUCT, EQUITY OR PURSUANT TO SOME OTHER THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY, NEGLIGENCE OR STRICT LIABILITY, WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS MADE KNOWN TO OR WAS FORESEEABLE BY SUNBIRD AND WHETHER SUCH DAMAGES ARE ASSERTED BY LICENSEE OR SOME OTHER PARTY. LICENSEE FURTHER ACKNOWLEDGES THAT SUNBIRD's MAXIMUM AGGREGATE LIABILITY TO LICENSEE UNDER ANY LEGAL THEORY FOR DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT OF THE PURCHASE, SALE, USE OF AND/OR INABILITY TO USE THE PRODUCTS AND/OR OPEN SOURCE SOFTWARE WILL NOT IN ANY EVENT EXCEED THE LESSER OF (a) THE ACTUAL DAMAGES SUFFERED BY LICENSEE OR (b) AN AMOUNT EQUAL TO TWO (2) TIMES THE PRODUCT FEE PAID BY LICENSEE TO SUNBIRD. LICENSEE ACKNOWLEDGES THAT THE PRICING OF THE PRODUCTS REFLECTS THE INTENT OF THE PARTIES TO LIMIT SUNBIRD's LIABILITY AS PROVIDED HEREIN. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE INTENDED TO LIMIT SUNBIRD's LIABILITY AND WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ANY ACTION, CLAIM OR PROCEEDING RELATING TO THIS AGREEMENT, THE PRODUCTS, AND/OR OPEN SOURCE SOFTWARE OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, MUST BE BROUGHT WITHIN TWELVE (12) MONTHS FOLLOWING THE ACTION OR EVENT GIVING RISE TO SUCH ACTION, CLAIM OR PROCEEDING.
7.1. Governing Law/Arbitration. The laws of the State of New Jersey, excluding its choice of law provisions, will govern the formation, interpretation, and performance of this Agreement. Customer agrees to submit any dispute, claim or controversy that may arise out of the rendering of Services or providing of Materials as set forth in this Agreement to arbitration by a single arbitrator in Newark, New Jersey in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. Judgment upon the arbitration award shall be final, binding and conclusive and may be entered in any court having jurisdiction. Nothing contained herein will be deemed to be a waiver of any right that may exist to remove an action filed in state court to federal court. The parties elect not to be governed by the United Nations convention on contracts for the international sale of goods.
7.2. Notices. All notices, demands, requests or other communications that may be or are required to be given, served or sent by either party to the other party pursuant to this Agreement will be in writing and will be mailed by first class, registered or certified mail, return receipt requested, postage prepaid, sent by a reputable, national, over-night courier service (with a requirement for receipt of delivery) or transmitted by hand delivery, telegram or facsimile transmission addressed to the parties at their principal office. Either party may designate by written notice a new address to which any notice, demand, request or communication may thereafter be given, served or sent. Each notice, demand, request or communication that is mailed, delivered or transmitted in the manner described above will be deemed sufficiently given, served, sent and received for all purposes at such time as it is delivered to the addressee with the return receipt, the delivery receipt, the affidavit of messenger or (with respect to a facsimile transmission) the answer back being deemed conclusive evidence of such delivery or at such time as delivery is refused by the addressee upon presentation.
7.3. Entire Agreement. This Agreement and the associated Order Documents represent the parties' entire agreement with respect to the subject matter of this Agreement and supersedes and replaces any prior agreement or understanding with respect to that subject matter. All prior and all oral representations, warranties and covenants with respect to the subject matter of this Agreement will be deemed to have been merged into and superseded by this Agreement. This Agreement may not be amended or supplemented except pursuant to a written instrument signed by the party against whom such amendment or supplement is to be enforced. This Agreement will prevail over any additional, conflicting or inconsistent terms and conditions that may appear on any purchase order, confirmation or other similar document sent or delivered by a party to this Agreement.
7.4. Restricted Rights. The Products are commercial in nature. The Software and Documentation are "Commercial Items" as that term is defined in 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R. section 252.227-7014(a)(5) and 48 C.F.R. section 252.227-7014(a)(1), and used in 48 C.F.R. section 12.212 and 48 C.F.R. section 227.7202, as applicable. Consistent with 48 C.F.R. section 12.212, 48 C.F.R. section 252.227-7015, 48 C.F.R. section 227.7202 through 227.7202-4, 48 C.F.R. section 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable, the Software and Documentation are licensed to United States Government end users with only those rights granted to all other end users, according to the terms and conditions contained in this Agreement. The manufacturer of the Products is Sunbird Software, Inc., 30 Knightsbridge Road, Suite 620, Piscataway, NJ 08854
7.5. Severability. The parties acknowledge that if any provision of this Agreement is determined to be invalid or unenforceable, it is their desire and intention that such provision be reformed and construed in such manner that it will, to the maximum extent practicable, be deemed to be valid and enforceable. Accordingly, in lieu of such invalid or unenforceable provision, there will be added automatically as a part of this Agreement a provision as similar in its terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
7.6. Third Party Beneficiaries. Except as expressly set forth or referred to in this Agreement, nothing in this Agreement is intended or will be construed to confer upon or give to any party other than the parties to this Agreement and their successors and permitted assigns, if any, any rights or remedies under or by reason of this Agreement. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise or the exercise of any other right.
7.7. Relationship of Parties. Nothing contained in this Agreement will be deemed to create any agency, joint venture, partnership or similar relationship between the parties to this Agreement. Nothing contained in this Agreement will be deemed to authorize any party to this Agreement to bind or obligate the other party.
7.8. Export. Licensee hereby agrees that Licensee will not export, directly or indirectly, any U.S. source software acquired from SUNBIRD and/or its reseller, including, without limitation, the Software, to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from (a) the United States Department of Commerce or other agency of the United States Government when required by an applicable statute or regulation, and (b) SUNBIRD, which consent SUNBIRD may withhold if such export would, in the reasonable business judgment of SUNBIRD, be detrimental to the interests of SUNBIRD.
7.9. Force Majeure. Neither party to this Agreement shall be liable to the other for any delay or failure by such party to perform its obligations (excluding obligations to pay money) under this Agreement if such delay or failure arises from any cause or causes beyond the reasonable control of such party, including, without limitation, labor disputes, strikes, acts of God, floods, lightning, shortages of materials, rationing, utility or communication failures, earthquakes, casualty, war, acts of the public enemy, riots, insurrections, embargoes, blockades or regulations or orders of governmental authorities. If a party to this Agreement shall be delayed or prevented from performing such party's obligations pursuant to this Agreement due to any cause beyond such party's reasonable control, such delay shall be excused during the continuance of such delay and the period of performance shall be extended to the extent necessary to enable such party to perform its obligations after the cause of such delay has been removed; provided, however, if such performance is delayed for thirty (30) or more days, the party entitled to the benefit of such performance may elect to terminate this Agreement.
7.10. Publicity; References. . Licensee agrees that (a) SUNBIRD may list Licensee as a customer of SUNBIRD in SUNBIRD' marketing and promotional materials, including on SUNBIRD' web site and in press releases; provided that SUNBIRD must obtain written consent from Licensee before using Licensee’s logos.
These following Software Maintenance Services Terms and Conditions (the “Services Agreement”) are an integral part of the Software End User License Agreement between Sunbird Software, Inc. ("Sunbird") and Licensee. Sunbird shall provide maintenance services as more fully described herein to Customer for the Software.
1.1. Customer means (a) the Licensee whose authorized agent has ordered Maintenance Services from Sunbird or from an authorized distributor, either as a separate order or as an order for a Subscription License that includes Maintenance Services; or, if applicable, (b) the end-user entity whose authorized agent has registered this Services Agreement at the Sunbird Software Support Website with the Software Maintenance Services Identification Number provided by Sunbird.
1.2. Enhancement means any modification or addition that, when made or added to the Software, materially changes its utility, efficiency, functional capability, or application, but that does not constitute solely an Error Correction. Enhancements may be designated by Sunbird as minor or major, depending on Sunbird's assessment of their value and of the function added to the preexisting Software.
1.3. Error Correction means either a modification or an addition that, when made or added to the Software, establishes material conformity of the Software to the functional specifications, or a procedure or routine that, when observed in the regular operation of the Software, eliminates the practical adverse effect on Customer of such nonconformity.
1.4. Error means any failure of the Software to conform in material respects to its functional specifications as published from time to time by Sunbird. However, any nonconformity resulting from Customer's misuse, improper use, alteration, or damage of the Software, or Customer's combining or merging the Software with any hardware or software not supplied or identified as compatible by Sunbird, shall not be considered an Error
1.5. Sunbird Software Support Website means the website designated either within these Terms & Conditions or elsewhere by Sunbird at which Customer may, among other activities, register a Services Agreement, obtain manuals and other technical information, and reviewed Customers software licenses and services portfolio.
1.6. Releases mean new versions of the Software, which may include both Error Corrections and Enhancements. Such Releases may be either provided either as patches to or complete replacement of the Software. A "generally available" release is a release which is available to the public at large. Releases do not include new products, optional enhancements or new or add-on products that are priced and sold separately by Sunbird. Sunbird is the sole determiner of the availability and designation of a Release.
1.7. Software Maintenance Services Identification Number is the identification and tracking number generated by Sunbird and provided to Customer to allow registration and tracking of the Software Maintenance Services Agreement.
1.8. Software means the Sunbird software product designated by the Customer’s order. Alternatively, Software means the Sunbird software product designated for support under the Software Maintenance Services Identification Number.
2.1. During the maintenance term, Sunbird shall provide maintenance services in support of the Software. Maintenance Services shall include both technical support services and software releases.
2.2. Support. Subject to the terms and conditions of this Agreement, Sunbird shall provide Customer with support services as described in this section.
2.2.1. Support Hours. Sunbird shall maintain standard service hours between 09:00 – 18:00 Monday to Friday, Eastern Standard Time excluding all public holidays.
2.2.2. Telephone Support. Sunbird shall provide a support telephone line to respond to support requests. The support telephone line shall be staffed during the hours of 09:00-18:00 EST Monday to Friday, excluding all public holidays. The support line is toll free within the United States at 732-993-4476 option 2.
2.2.3. E-mail Support. Sunbird shall provide e-mail support sufficient to respond to support requests in all major commercial markets worldwide, including, but not limited to, markets in Asia, Europe including the U.K., North America and South America.
2.2.4. Support requests outside standard service hours. All voicemails and emails will receive a response during the next normal business day. Urgent voicemail requests receive a live response within one hour of the start of the next normal business day.
2.2.5. Severity Level Response Times.
2.2.5.1. Issue Severity Level Definitions
a. SL1/Critical: Total System Failure: The Software is inoperable or experiencing a major malfunction resulting in a substantially inoperative condition. Users are unable to reasonably perform their normal functions. No reasonable workaround exists.
b. SL2/Major: Loss of functionality of the Software which, because of Intermittent occurrence or limited scope, impacts a limited number of users. The Software is operational but its usability may be limited. No reasonable workaround exists.
c. SL3/Moderate: Loss of functionality where reasonable workaround exists
d. SL4/Minor: Minor functional issue, cosmetic issue, or New Feature Request. Also includes customer requests for information on the configuration, installation, capabilities or use of Sunbird Software.
2.2.5.2. Severity Level Response Times Table
| Issue Severity | Response* |
|---|---|
| SL1 - Critical | 2 Hours |
| SL2 - Major | 4 hours |
| SL3 - Moderate | Next Business Day |
| SL4 - Minor | Next Business Day |
* Within Support Hours
2.2.5.3. Severity Level Restore Time and Resolution Method
| Issue Severity | Restore Time | Resolution Method |
|---|---|---|
| SL1 - Critical | 24 Hours | Restore system to service and\or, provide emergency patch, new Software release, or reasonable work-around. |
| SL2 - Major | 48 hours (if applicable) |
Provide solution, emergency patch, new Software release, or reasonable work-around. |
| SL3 - Moderate | NA | Schedule for future release based on priority. |
| SL4 - Minor | NA | Answer relevant questions or consider changes for inclusion in future release. |
For SL1 issues, Sunbird will make every reasonable attempt to resolve the problem within 24 hours, including:
Within the first 4 hours of receipt of SL1 ticket, Sunbird will provide an action plan that will include next steps and schedule for the next status update. If an SL1 Problem has not been resolved within a 24-hour period after the case has been opened, the problem will be escalated to Sunbird Engineering Directors and Product Management. If the SL1 Problem has not been resolved within 48 hours, Sunbird will establish a Response Team of individuals with the skills and knowledge necessary to effectively address the problem. This Response team will remain in place until the root cause has been identified and suitable restore option provide to Customer. During the investigation, Sunbird will provide daily updates on progress.
For SL2, SL3 and SL4, investigation timeframes will be dependent on the nature of the issue, lab access, impact to the customer, and other relevant factors.
“Priority” Issues:
Certain issues can be designated as “priority” by Client. The “priority” designation is independent of the issue severity. The priority will be indicated in the associated trouble ticket. Issues designated as “priority” will be investigated first. Status of priority issues will be reviewed regularly at the “Periodic Review Meetings.”
2.2.6. Remote Support. Initial support will be provided in part by directing Customer to use certain diagnostic tools available on the Software. If this proves insufficient to resolve the support request, if Customer grants explicit permission, and if Customer establishes and maintains the appropriate network configuration, Sunbird personnel will access the Software remotely and provide remote systems via an SSH2 connection to a server designated by Sunbird.
2.3. Software Releases. As part of its maintenance services, Sunbird may provide periodic Software Releases.
2.3.1. Minor Releases. Sunbird may provide periodic Minor Releases. A Minor Release is a generally available release of the Software that may provide Enhancements designated minor by Sunbird, as well as bug fixes (error corrections). Such a release shall be denoted by a change in the digit to the right of the second decimal point - for example, 9.1.0 to 9.1.1.
2.3.2. Major Releases. Sunbird may provide periodic Major Releases. Major Releases are generally available releases of the Software that provides Enhancements designated major by Sunbird, as well as minor new Enhancements and Error Corrections. Such a release shall be denoted by a change in the digit to the right of the first decimal point - for example, 9.1.0 to 9.2.0.
2.3.3. Milestone Releases. Sunbird may provide releases which include significant advances in the software, including but not limited to "fence releases" that require a fresh install of the solution. Such a release is denoted by a change in the digit to the left of the first decimal point - for example, 9.1.0 to 10.0.0.
2.4. Limitations on Scope of Maintenance Services.
2.4.1. Sunbird shall have no obligation to provide Releases or Support for the Software except as set forth in this Services Agreement. Sunbird shall not have any responsibility to develop subsequent components for the Software or additional processes for Customer, except as explicitly set forth herein.
2.4.2. Except as set forth in this Services Agreement, Sunbird shall have no obligation to fix errors in the Software within a specified period of time due to the nature of software operating in a multivendor environment.
2.4.3. Customer rights and obligations concerning the use of any Releases (Error Corrections, Enhancements, or any other programming provided by Sunbird relating to the Software) shall be as provided under the End-User License Agreement between Customer and Sunbird. Sunbird shall have sole and exclusive ownership of all right, title, and interest in and to such works (including ownership of all copyrights and other intellectual property rights pertaining thereto), subject only to the license expressly granted to Customer therein.
2.4.4. Maintenance Services do not include: (a) development of custom computer programs, (b) repairs or service relating to any third party software or hardware, or (c) hardware modifications or changes to existing hardware configurations, outside the scope of warranty support.
3.1. Limited Maintenance Services Warranty Sunbird warrants, for a period of ninety (90) days following the performance of the applicable Maintenance Service, that such Maintenance Services was performed in a professional manner and in a manner that was at least equal to applicable industry standards prevailing at the time of performance.
Warranty Disclaimer and Limitation of Liability. CUSTOMER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS & CONDITIONS, SUNBIRD HAS NOT MADE ANY REPRESENTATION OR WARRANTY TO CUSTOMER REGARDING THE MAINTENANCE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUNBIRD DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY WITH RESPECT TO TITLE, NON-INFRINGEMENT, MERCHANTABILITY, DESIGN, CONDITION, DURABILITY, PERFORMANCE, QUALITY, CAPACITY OR TECHNICAL COMPATIBILITY OF THE MAINTENANCE SERVICES OR FITNESS OF THE MAINTENANCE SERVICES FOR A PARTICULAR PURPOSE.
ASHRAE® is a registered trademark of the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. The psychometric regions provided here are based on published ASHRAE information and do not imply sponsorship, endorsement or authorization by ASHRAE of this Cooling feature in particular, of Power IQ in general, or of Sunbird Software. The Region specified by ASHRAE-2004 is based on published ASHRAE information from ASHRAE Publication, "Thermal guidelines for Data Centers and other Data Processing Environments", Atlanta, 2004. The Region specified by ASHRAE-2008 is based on published ASHRAE information from ASHRAE Publication, "Best Practices for Datacom Facility Energy Efficiency, Second Edition", Atlanta, 2009. The Region specified by ASHRAE-2011 is based on published ASHRAE information from ASHRAE Publication, "2011 Thermal Guidelines for Data Processing Environments – Expanded Data Center Classes and Usage Guidance", Atlanta, 2011.
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