Software License Agreement

VACAVA® INC.
SOFTWARE LICENSE AGREEMENT
RAPIDBIZ DEVELOPMENT LICENSE

This Software License Agreement ("Agreement") is a legal agreement between you, Licensee, a legal entity ("you" or "your"), and VACAVA, Inc. ("VACAVA") governing your license of RapidBIZ from VACAVA.

PURPOSE. RapidBIZ is a product of VACAVA and is licensed for application development users to create and deploy new browser delivered application software in the cloud or on premise.
DEFINITIONS. "Affiliate" means any legal entity in which you then-currently own at least 50% of the voting securities or which is controlled by you or under your common control (excluding any affiliates which are competitors of VACAVA), where "controlled by you or under your common control" means your control of the board of directors or similar management board of such entity. "Documentation" means the electronic and print documentation which VACAVA may provide you that relates to RapidBIZ. "Software" means RapidBIZ accompanying or provided under this Agreement, including object code computer software, all permitted reproductions made by you, and all updates and upgrades thereto provided under warranty or a maintenance agreement between you and VACAVA, together with all associated media and corresponding Documentation. "Applications" means derivative work created as a result of using the RapidBIZ to create application software.
LICENSE GRANT; RESTRICTIONS ON USE. RapidBIZ is licensed not sold to you. The RapidBIZ may contain a device or license key(s) that limits your usage to that which has been agreed to and paid for by you. Provided you have paid all applicable fees, activated RapidBIZ using the license key(s) provided to you by VACAVA, and otherwise complied with the terms and conditions of this Agreement. VACAVA hereby grants you a nonexclusive, non-transferable, terminable and limited license to use the RapidBIZ in object code form only on the number of servers in accordance with the applicable license types as more fully described below.
1. If you acquire a User Based RapidBIZ license for a number of users to simultaneously access the RapidBIZ via a LAN or internet to the cloud running RapidBIZ from a computer connected to a network, then the number of users for which a license has been acquired may use RapidBIZ. See your purchase agreement for all entitlement and/or restrictions.
2. If you acquire an Evaluation License, you may only use the RapidBIZ for evaluation purposes that is for the purpose of determining if you will purchase a regular license to RapidBIZ, and not for commercial use. The Software is licensed only for the specified evaluation period, which will begin on the date that the Software was available on the designated server, whether in the cloud or on premise. Your Evaluation License to RapidBIZ automatically terminates upon the earlier of expiration of the applicable evaluation period and your conversion of an Evaluation License to a Node Locked License or Floating License by payment of the applicable fee to VACAVA, unless VACAVA has agreed in writing to extend the duration of the evaluation period.
3. If you acquire an Enterprise License, number of users is unrestricted and number of servers is unrestricted. See your purchase agreement for all entitlement and/or restrictions.
4. The custom applications developed by VACAVA are delivered with a perpetual, worldwide license where you are permitted to change and/or modify the applications as needed. VACAVA has no obligation to fix applications that have been changed or modified by you.
5. The features and functionality you acquire with your license will vary based on the license edition you receive and the features and functionality included in your licensed edition. You may only use features and functionality which have been provided to you.
6. You shall not, and you shall not cause or permit anyone to:
  1. exceed the number of licenses, users or transaction agreed to and by you;
  2. transfer RapidBIZ to a different Designated Server or transfer the licensed services to different servers (for Server Licenses) without the prior written approval of VACAVA
  3. copy, duplicate or otherwise reproduce RapidBIZ, except for one copy for backup purposes;
  4. modify or create derivative works of RapidBIZ;
  5. reverse engineer, disassemble, decompile or otherwise manipulate RapidBIZ, except to the extent expressly permitted by applicable law, and then only after prior written notification has been given to VACAVA specifying the permitted manipulation
  6. loan, lease, sell, sublicense, resell, distribute, assign or otherwise transfer RapidBIZ to any third party including an assignment by operation of law,
  7. use RapidBIZ on a service bureau or timesharing basis or application service provider basis or for the benefit of any third parties;
  8. remove, obscure or alter any patent, copyright, trademark or other proprietary rights notice(s) on RapidBIZ; or
  9. use, evaluate or view RapidBIZ for the purposes of designing or creating any software program, in whole or in part, with features or functions similar to the features or functions of any of RapidBIZ.
MAINTENANCE AND SUPPORT SERVICES. VACAVA may, but is not obligated to, provide you with maintenance and support services related to RapidBIZ ("Maintenance and Support Services") by entering into a separate services agreement with you and you paying the applicable fees therefor.
FEES AND PAYMENT. In consideration for the licenses to RapidBIZ you have purchased, you shall pay VACAVA the license and other fees due under this Agreement, except as otherwise agreed in writing by the parties.
TERMINATION. This Agreement shall automatically terminate if you fail to comply with any of the terms or conditions of this Agreement, if curable, such failure remains uncured for a period of 15 days after written notice from VACAVA. You may terminate a license or this Agreement at any time with 30 days prior written notice to VACAVA. VACAVA will not refund monies already paid. Upon any termination of a license or this Agreement, you must
1. cease all use of RapidBIZ to which your license(s) have terminated;
2. destroy all copies of RapidBIZ to which your license(s) have terminated, in whole or in part, in all forms and formats; and
3. provide VACAVA with written certification that all copies of RapidBIZ, whether partial or complete, to which your license(s) have terminated have been destroyed.
VACAVA WARRANTIES; DISCLAIMER.
1. For 30 days from the date of VACAVA's delivery of RapidBIZ, VACAVA warrants to you that
  1. the software code portion of RapidBIZ will perform in substantial conformance with the documentation supplied as part of RapidBIZ; and
  2. the media portion of RapidBIZ will be free from defects in materials and workmanship under normal use, provided, however, the foregoing warranties shall not apply
    1. if you fail to use RapidBIZ strictly in conformance with the documentation supplied as part of RapidBIZ;
    2. if RapidBIZ is damaged, altered or modified other than by VACAVA; or
    3. if RapidBIZ is used with software or hardware not supplied by VACAVA.
  To make a claim for any breach of the foregoing warranties, you must return to VACAVA the defective Software, postage prepaid, with a copy of your paid invoice and a description of the problem(s) within five days of the date of discovery of the breach of warranty. VACAVA's sole obligation and your sole and exclusive remedy for breach of the foregoing warranties shall be for VACAVA either to repair or replace the software code portion of RapidBIZ with software code that substantially conforms to the documentation, repair or replace the media portion of RapidBIZ. Any repaired or replacement software code and media portions of RapidBIZ are warranted for the balance of the original 30 day warranty period or for 15 days from the date you received the repaired or replacement software code or media, whichever is longer.
2. NOTWITHSTANDING THE FOREGOING, ANY SOFTWARE LICENSED UNDER AN EVALUATION LICENSE OR DOWNLOADABLE LICENSE IS LICENSED ON AN "AS IS" BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES WHATSOEVER.
3. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, THE SOFTWARE IS LICENSED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES WHATSOEVER, AND VACAVA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. VACAVA AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE IS VIRUS FREE OR ERROR FREE, THAT ITS USE WILL BE UNINTERRUPTED OR THAT THE INFORMATION CONTAINED IN THE SOFTWARE IS CORRECT OR WILL MEET YOUR REQUIREMENTS.
LIMITATION OF LIABILITY.
1. IN NO EVENT SHALL VACAVA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, TREBLE OR PUNITIVE DAMAGES OR OTHER SIMILAR DAMAGES (SUCH AS LOST PROFITS, LOSS OF USE OR REVENUE, BUSINESS INTERRUPTION OR LOSS OF DATA) IN CONNECTION WITH THIS AGREEMENT, THE DEVELOPMENT AGREEMENT OR USE OR PERFORMANCE OF THE SOFTWARE, WHETHER ANY CLAIM THEREFOR IS BASED UPON CONTRACT, NEGLIGENCE OR TORT (INCLUDING STRICT LIABILITY) OR ANY OTHER THEORIES OF LIABILITY.
2. IN NO EVENT SHALL VACAVA OR ITS LICENSORS BE LIABLE TO YOU UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE TOTAL LICENSE FEE PAID BY YOU FOR THE SOFTWARE THAT GIVES RISE TO THE CAUSE OF ACTION.
3. THIS LIMITATION OF LIABILITY PROVISION CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT AND THE DEVELOPMENT AGREEMENT, AND VACAVA WOULD NOT LICENSE THE SOFTWARE TO YOU WITHOUT SUCH LIMITATION.
4. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN 1 YEAR AFTER THE EVENTS GIVING RISE TO THE CAUSE OF ACTION OCCURRED.
YOUR WARRANTY. You warrant that
1. you have full authority to accept and perform this Agreement; and
2. this Agreement has been duly accepted by you and constitutes a legal, enforceable and binding obligation on you
OWNERSHIP.
1. All title and intellectual property rights in and to RapidBIZ (including Custom Development and Documentation) are owned by VACAVA and its licensors. The Software is protected by copyright law and international treaty provisions. This Agreement does not grant you any rights in connection with any trademark or service mark of VACAVA, and you shall have no right to use VACAVA's corporate name or trademark or service mark of VACAVA directly or indirectly in any papers, articles, advertisements, sales presentations, news releases or releases to any third party without the prior written approval of VACAVA for each such use.
2. VACAVA acknowledges that any and all of the Intellectual Property Rights and other intellectual property rights in connection with any application software (including without limitation the Application Structure, the Application and the Deliverables) developed by you and all documentation, flowcharts, drawings, specifications, manuals and other data which are created as a result of this vest in and shall be the sole property of you.
3. You have the right to distribute copies of the software application(s) developed by you to any duly authorized RapidBIZ development license or runtime license.
INDEMNIFICATION. You shall indemnify and holds harmless VACAVA from and against any claim, loss, liability, damages, settlements, judgment, tax, penalty, fine, fees, or other expenses (including attorney and expert fees and court costs) arising out of or resulting from your (or your employees if you are a legal entity) acts and omissions related to use or misuse of RapidBIZ, except to the extent any such claim, loss or liability arises out of or results from the gross negligence or intentional misconduct on the part of VACAVA.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is Commercial Computer Software, and was developed solely at private expense. Use, modification, reproduction, release, performance, display, or disclosure by the U.S. Government is subject to restrictions as set forth in Commercial Computer Software -- Restricted Rights clause at FAR 52.227-19, subsections (c)(1) and (2), as proscribed by FAR 27.405(b)(2), or the restrictions set forth in this license agreement pursuant to DFAR 227.7202-3(a), whichever is applicable. Copyright, VACAVA, Inc. 2003 to 2017. Partially unpublished - rights reserved under the Copyright Laws of the United States.
LAWFUL USE OF SOFTWARE. You shall not use RapidBIZ for any unlawful purpose. Without limiting the generality of the foregoing, RapidBIZ (and the underlying information and technology) may not be exported or re-exported in violation of U.S. export control laws and regulations. By using RapidBIZ, you represent and warrant that you are and will be in compliance with all such laws and regulations during the time period you use RapidBIZ.
NOTICES. Any notice permitted or required to be given under this Agreement shall be deemed sufficient if given by registered or certified mail, postage prepaid, return receipt requested, by private courier service or by facsimile addressed to your address on your invoice for RapidBIZ and/or to VACAVA at 3131 Superior Dr NW, Rochester, Minnesota; 55901, or to such other addresses as the parties may designate by like notice from time to time. A notice so given shall be effective upon
1. receipt by the party to which the notice is given; or
2. on the fifth day following domestic mailing or the tenth day following international mailing, whichever occurs first.
AUDIT RIGHTS. You shall maintain complete and accurate books and records relating to compliance with the usage restrictions of RapidBIZ. VACAVA shall have the right at its own expense, during normal business hours and upon reasonable written notice to audit your computers, books and records to verify your compliance with the terms and conditions of this Agreement.
DISPUTE RESOLUTION AND ARBITRATION.
1. If any dispute or claim arises between the parties in relation to, or in connection with this Agreement, the parties shall endeavor to resolve the same through negotiations. In the event the matter is not resolved by means of negotiations within a period of sixty (60) days, the dispute shall be referred to one mutually agreed upon arbitrator who shall adjudicate the dispute in accordance with the then-current relevant industry rules, if any, of the American Arbitration Association ("AAA").
2. The venue of arbitration proceedings shall be in [Minneapolis,] Minnesota, U.S.A., and the decision of the arbitrator shall be final and binding upon the parties.
3. The language to be used in the arbitration proceedings shall be English.
4. The prevailing party in the arbitration proceedings shall be awarded reasonable attorney fees, expert witness costs and expenses, and all other costs and expenses incurred directly or indirectly in connection with the proceedings, unless the arbitrator shall for good cause determine otherwise
GENERAL PROVISIONS. This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to the subject hereof and supersedes and replaces any and all prior agreements, understandings, promises and representations, oral or written. This Agreement may only be amended or modified in a writing duly executed by representatives of both parties. This Agreement may not be assigned or transferred by you, including by operation of law, except with the prior written consent of VACAVA. Any prohibited assignment shall be null and void. This Agreement shall be construed and interpreted under the laws of the State of Minnesota, excluding its choice of law rules. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement. If any provision of this Agreement is found to be unenforceable or invalid by an arbitrator or a court of competent jurisdiction, such provision shall be interpreted so as to best accomplish the objectives of such provision and the remainder of this Agreement shall remain valid. No delay or failure of VACAVA to exercise any right under this Agreement, and no custom or practice of the parties at variance with the terms hereof, shall constitute a waiver of VACAVA's right to exercise such right or to demand strict compliance by you with any terms hereof. Waiver by VACAVA of any particular default of you shall not affect or impair VACAVA's rights with respect to any subsequent default of the same, similar or a different nature. The official version of this Agreement is in English. All contract interpretations, notices and dispute resolutions shall be in English. Any amendment to this Agreement shall be in English.