Hosted/ASP Software End User License Agreement
GLOBAL EMERGENCY RESPONSE INC’S (“GER” OR “LICENSOR”) HC Standard® SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD) FOR USE BY YOU (“LICENSEE”). LICENSOR DOES NOT SELL OR TRANSFER TITLE TO THE LICENSED SOFTWARE TO LICENSEE. YOUR LICENSE for the use of HC Standard ® WILL NOT COMMENCE UNTIL YOU HAVE ACCEPTED THE FOLLOWING TERMS.
Licensee AGREES TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”) AND WARRANTS THAT LICENSEE HAS THE AUTHORITY TO BIND THE LICENSEE AND/OR USER(S) OF THE HC Standard ® SOFTWARE IDENTIFIED HEREIN, AND SUCH LICENSEE(S) AND/OR USER(S) IS/ARE CONSENTING TO BE BOUND BY, AND EACH IS/ARE BECOMING A PARTY TO THIS EULA. IF LICENSEE DOES NOT AGREE WITH ALL THE TERMS, YOU MUST NOTIFY LICENSOR AND YOU WILL NOT HAVE ANY LICENSE TO ACCESS OR USE ANY PART OF THE SOFTWARE. IF YOU HAVE ORDERED THIS PRODUCT OR CONTRACTED FOR ACCESS TO THIS PRODUCT, GER’S ACCEPTANCE IS EXPRESSLY CONDITIONED ON YOUR ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS (EXCEPT NON-PREPRINTED QUANTITY, PRICE, PAYMENT AND LICENSE RESTRICTION TERMS AGREED UPON BY YOU AND GER IN WRITING) AND TO THESE LIMITED TERMS:
- “GER” or “Licensor” means Global Emergency Response Inc., an Arkansas Corporation with officers located at 122 N. Bloomington, AR 72745.
- “You” or “Your” means the person or business entity which accepted this License to use the Software (the “Licensee”) or for whom such License was obtained, and (b) any person who uses the Software pursuant to this License (a “User”).
- “Documentation” means the Administrator and User Manuals and any other HC Standard® material provided by GER with the Software, whether supplied in printed or electronic format, and for any of the application modules or extensions.
- “Hosting Agreement” means the Subcontract to which this EULA is attached, between User and GER and all of its exhibits, schedules, and attachments, as the same as amended from time to time.
- “License” has the meaning set forth in Section 2, below.
- “Site” means a single location with administrative rights to a single organization and/or its organic subordinate organizations where user and/or software management/maintenance is affected.
- “Software” collectively means all computer software owned by GER, including the HC Standard® software, to which You have been granted access pursuant to the terms of the Hosting Agreement.
2 “User” means any person who uses the Software pursuant to the applicable Hosting Agreement and this EULA License.
- Grant. In consideration of the payment of the license fees set forth in the applicable Hosting Agreement, Licensor grants You the world-wide, non-transferrable, non-assignable and non-exclusive use of the Software and related data as a service in machine-readable form and related materials subject to the following terms and conditions, as well as the limited right to grant access to Users to use the Software pursuant to the terms and conditions of the applicable Hosting Agreement. In all instances, Licensor reserves all rights not expressly granted to You. The Software is solely for Your use and the use of Your affiliates, contractors and third parties who require the information for a purpose directly related to Your authorized use of the Software.
- Confidentiality. The Software and Documentation contain confidential trade secrets of Licensor. You agree to hold in confidence, not disclose and not use (except as expressly provided herein) the Software and Documentation, including the contents thereof, and ensure that there is no breach, compromise or violation by Your employees, consultants, or independent contractors of such confidentiality obligations and Licensor’s trade secrets. You recognize and agree that there is no adequate remedy at law for a breach of this Section 2.b., that such breach would irreparably harm Licensor for which monetary damages would not be an adequate remedy and that Licensor is entitled to equitable relief (including, without limitation, temporary restraining orders, preliminary injunctions, and permanent injunctions) with respect to any such breach or potential breach in addition to any other remedies available under State and/or Federal Law, including the Defend Trade Secrets Act (DTSA) of 2016, 18 USC 1836(b) which provides for seizures.
- Proprietary Interests. The Software and Documentation, and all copies thereof, shall remain the exclusive property of GER. All applicable rights to copyrights and trademarks shall remain vested in GER and You shall not undertake to copyright or trademark the Software and Documentation. You agree to not contest GER’s ownership of such copyrights, trademarks, Software and Documentation, and further to not take any action adverse to such ownership. However, You shall have the right at all times to data input and output arising out of Your use of the Software.
3 Scope of Rights.
Licensee, as the individual/entity executing the applicable Hosting Agreement may:
- Access the Licensed Software on Your computer for Your own business purpose.
- Grant permission to a pre-determined number of third-parties whom You designate (each a Licensed User, as more fully described and limited in the Hosting Agreement) to use the Software with specific logon usernames and passwords so that such Users may create, modify, or delete data within the Software; and
- In support of Your authorized use of the Licensed Software, store the Software’s machine-readable instructions or data in, transmit it through, and display it on machines associated with authorized Users.
4 Ownership, Proprietary Protection and Restrictions.
- Licensor shall have sole and exclusive ownership of all right, title, and interest in and to the Software and all modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto) and Documentation, including the content thereof, subject only to the rights and privileges expressly granted to You by Licensor in the applicable Hosting Agreement. This EULA does not provide You with title or ownership of the Software, but only a right of limited use. You must keep the Software and Documentation free and clear of all claims, liens, and encumbrances. You agree to not use, copy, modify, or distribute the Software (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Licensor. You agree to not reverse assemble, reverse compile, or otherwise translate the Software. Your rights may not be transferred, leased, assigned, or sublicensed except for a transfer of the Software in its entirety to (1) a successor in interest of Your entire business that assumes the obligations of the Hosting Agreement and that is not a competitor of GER or (2) any other party that is reasonably acceptable to Licensor, enters into a substitute version of the Hosting Agreement, and pays an administrative fee intended to cover attendant costs. No service bureau work, multiple-user license, or time-sharing arrangement is permitted, except as expressly authorized in writing by Licensor. You agree that Licensor may collect and use technical information to facilitate product support and updates.
- You acknowledge that, in the event of Your breach of any of the foregoing provisions, Licensor will not have an adequate remedy in money or damages. Licensor shall therefore be entitled to obtain a temporary restraining order, preliminary injunction, and permanent injunction against such breach from any court of competent jurisdiction immediately upon request. Licensor’s right to obtain injunctive relief shall not limit its right to seek further remedies.
- If a third-party claims that the Software infringes its patent, copyright, or trade secret, or any similar intellectual property right, Licensor will defend You against that claim at Licensor’s expense and pay all damages that a court finally awards, provided that You promptly notify Licensor in writing of the claim, and allow Licensor to control, and fully cooperate with Licensor in, the defense or any related settlement negotiations. If such a claim is made or appears possible, You agree to permit Licensor to enable You to continue to use the Software, or to modify or replace the Software. Licensor has no obligation for any claim based on Your modification of the Software or its combination, operation, or use with any product, data, or apparatus not specified in writing or provided by Licensor, provided that such claim solely and necessarily is based on such combination, operation, or use and such claim would be avoided by combination, operation, or use with products, data, or apparatus specified or provided by Licensor. THIS PARAGRAPH STATES LICENSOR’S ENTIRE OBLIGATION TO YOU WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
Except as expressly authorized in the Hosting Agreement, You agree not to and shall not use, rent, lease, loan, sell, sublicense, distribute, transfer, copy, reproduce, display, modify, create derivative works of, time share or dispose of the Software or Documentation, or any part thereof. You may use the Software and Documentation solely for Your business purposes. Except as noted in Section 3.b., You may not use the Software to provide any services to third parties. Assignment.
Licensor and Licensee may not assign or otherwise transfer in whole or in part or in any manner any rights, obligations, duties, or any interest in or under this Agreement without the prior written consent of the other party and any attempted assignment will be void. A merger or other acquisition by a third party will be treated as an assignment.
Licensor shall support the Software to ensure it is available to You in accordance with the Hosting Agreement and SLA. As a server-based program, Licensor may enhance or improve the software performance and appearance from time to time and provide customer support for those changes for all active accounts.
7 Your Responsibilities.
You are responsible for selecting an administrator who is qualified to operate the Software and is familiar with the information, calculations, and reports that serve as input and output of the Software. GER may serve as Your administrator if agreed to in the applicable Hosting Agreement. Licensor reserves the right to refuse assistance or to charge additional fees if an administrator seeks assistance with respect to such basic background information or any other matters not directly relating to the operation of the Software. Except as agreed otherwise in the applicable Hosting Agreement, Licensor assumes no responsibility for obtaining or providing any equipment or hardware to You or Your authorized Users. You are also responsible for ensuring a proper environment and proper utilities for Your computer systems that access the Software to ensure that they will operate efficiently, including an uninterrupted power supply and high-speed network and internet connections. Except as agreed otherwise in writing, Licensor assumes no responsibility under this Agreement for converting Your data files for use with the Licensed Software.
8 Limited Warranty and Limitation of Liability.
For so long as the Licensee is an active customer of GER in good standing under the applicable Hosting Agreement, Licensor warrants the performance of the Software to conform in all material respects to the specifications for the current version of the Software. This warranty is expressly conditioned on Your observance of the operating, security, and data-control procedures set forth in the Documentation provided to You or included with the Software, which may be revised at the sole discretion of the Licensor.
- Licensor is not responsible for obsolescence of the Software that may result from changes in Your requirements. The foregoing warranty shall apply only to the most current version of the Software issued by Licensor as delivered from the client server. Licensor is responsible to make available the most recent version of the Software accessible and resident on the client server.
- As Your exclusive remedy for any material defect in the Software for which Licensor is responsible, Licensor shall attempt through commercially reasonable efforts to correct or cure any reproducible defect by issuing corrected instructions, a restriction, or a bypass. In the event Licensor does not correct or cure such nonconformity or defect after it has had a reasonable opportunity to do so, Your exclusive remedy shall be the refund of the amount paid as the license fee for the defective or nonconforming module of the Software. Licensor shall not be obligated to correct, cure, or otherwise remedy any nonconformity or defect in the Software if You have made any changes whatsoever to the Software, if the Software has been misused or damaged in any respect, or if You have not reported to Licensor the existence and nature of such nonconformity or defect promptly upon discovery thereof.
- EXCEPT AS EXPRESSLY SET FORTH IN THIS EULA AND THE HOSTING AGREEMENT, LICENSOR DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, AND ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
- The cumulative liability of Licensor to You for all claims relating to the Software and the Hosting Agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of all license fees paid to Licensor by You. This limitation of liability is intended to apply without regard to whether other provisions of this EULA have been breached or have proven ineffective. This limitation of liability shall not apply to the indemnification provided in Section 4.d. hereof.
- In no event shall Licensor be liable for any loss of profits; any incidental, special, exemplary, or consequential damages; or any claims or demands brought against you, even if Licensor has been advised of the possibility of such claims or demands. This limitation upon damages and claims is intended to apply without regard to whether other provisions of this EULA or the applicable Hosting Agreement have been breached or have proven ineffective. You may have additional rights under certain laws (e.g., consumer laws) that do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If such laws apply, our exclusions or limitations do not apply to you.
9 Term of Agreement; Termination.
The term (including any renewal) of Your license to use the Software shall be as set forth in the Hosting Agreement. A failure to pay the hosting fee is considered an election not to renew the Hosting Agreement. Should You elect to stop using the Software, Your data will be retained for a period of time as defined in the Hosting Agreement. Your data will be provided to You as defined in the Hosting Agreement if that Hosting Agreement is terminated. Your rights under this EULA will terminate automatically if you fail to comply with any of its terms. Upon termination of this Agreement, all rights granted to You will terminate and revert to Licensor.
10 High Risk Activities.
The Software is not fault-tolerant and is not designed, manufactured, or intended for use or resale in hazardous environments regarding fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). GER AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH-RISK ACTIVITIES.
11 Export Controls.
Unless an appropriate license, exemption, or similar authorization has been duly obtained to GER’s satisfaction, You shall not, nor shall You authorize or permit Your employees, distributors, dealers, and/or agents to, export or re-export the Software or Documentation (including any information relating thereto) to any country specified as a prohibited destination in applicable U.S. laws, regulations, and ordinances, including the Regulations of the U.S. Department of Commerce, the Department of the Treasury and/or other government agencies. You agree to defend, indemnify, and hold harmless GER from and against any claim, loss, liability, expense, or damage (including fines or legal fees) incurred by GER with respect to any of Your export or re-export activities contrary to the foregoing instructions.
12 U.S. Government End Users.
13 Force Majeure
If You are an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, Documentation manuals, or any technical specifications, or any related documentation of any kind, including technical data (collectively for purposes of this section referred to as “Documentation”), is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies, Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies and the equivalent regulations for the Department of Energy. The Software is commercial computer software, and the Documentation is commercial computer software documentation. The use of the Software and Documentation is further restricted in accordance with the terms of this EULA, or any modification thereto. You shall ensure that each copy used or possessed by or for the Government is labeled to reflect the foregoing. Use by, reproduction by, or disclosure to governments of other countries is subject to applicable laws.
Licensor shall not be liable for failure to perform due to unforeseen circumstances or causes beyond their reasonable control, including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, fire, flood, accidents, strikes, inability to secure transportation, fuel, energy, labor, or materials. Time for performance may be extended by the amount of any delay at GER’s sole discretion.
14 Compliance with Laws.
You shall use the Software in compliance with all applicable laws and regulations. You agree that You shall not rely on the Software or the Services under the Hosting Agreement as a means for your own compliance with any applicable law or regulations.
You agree that the “United Nations Convention on the International Sale of Goods” does not apply to both this EULA and the applicable Hosting Agreement. You consent to the sole jurisdiction and venue of the state courts of Fairfax County, Virginia and the Federal Courts of the Eastern District of Virginia, Alexandria Division. You agree that the “United Nations Convention on the International Sale of Goods” does not apply to both this EULA and the applicable Hosting Agreement. You may not assign this EULA without the written consent of Licensor. No modification of this EULA shall be binding unless it is in writing and is signed by GER. Any notices required or permitted under this EULA shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, with proper postage affixed, as well as by email. In the event that any of the terms of this EULA is or becomes or is declared to be invalid or void by any court or tribunal of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from this EULA and all the remaining terms of this EULA shall remain in full force and effect.
Effective Date: November 1st, 2021