GRAPHITE GTC FREE TRIAL
SOFTWARE TERMS OF USE
This Graphite GTC Software Subscription Agreement (this "Subscription") by and between Graphite GTC, a Delaware corporation located at 1022 East Lancaster Avenue, Bryn Mawr, PA 19010 ("Graphite GTC") and current subscriber ("Customer") is effective as of the date of installation.
YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS SOFTWARE SUBSCRIPTION AGREEMENT WHEN YOU USE THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT ACCEPT OR USE THE SOFTWARE.
BACKGROUND
1.1. Agreement Structure Graphite GTC is the owner and developer of this Development Platform for the production of enterprise-class applications, known as Graphite GTC "Graphite GTC Platform". Customer desires to use Graphite GTC Platform to produce software applications for itself.
1.2. Definitions. The following terms shall have the meanings set forth below:
"Application" means a software application that performs tasks for Customer or its customers. For the sake of clarity, an Application is not an operating system or a tool for producing software applications.
"Customer's Systems" means Customer’s information technology infrastructure, including computers, hardware, databases, electronic systems (including database management systems) and networks, in each case operated by Customer and not by third-party hosting services.
"Enhancements" means inventions, improvements, modifications, processes, ideas, technologies, know-how, work product, concepts, software programs, computer language/code, compilations, documentation and other intellectual property rights.
"Maintenance" means the various tasks and obligations to be performed by Graphite GTC as a part of this Subscription.
"Services" means training, technical support and any application development or application development support provided to Customer by Graphite GTC under the terms of this Subscription.
"Deliverables" means Graphite GTC Platform Software release.
"Upgrades" means new versions, updates, and upgrades of Graphite GTC Platform as may be released by Graphite GTC commercially.
"Contract Year" means each twelve (12) month period commencing on the Effective Date or any anniversary of the Effective Date during the term.
SUBSCRIPTION
2.1. Grant of Rights. Graphite GTC hereby grants Customer a non-exclusive, non-assignable subscription to utilize Graphite GTC Platform to develop new Applications for use by Customer in its own operations.
2.2. Restrictions on Use. The subscription in Section 2.1 shall be subject to the Customer’s observance of Graphite GTC's standard Restrictions on Use attached hereto as Exhibit A.
2.3. Enhancements. Enhancements to the Software developed for or at the request of Customer shall be the exclusive property of Graphite GTC. Customer hereby grants Graphite GTC the right to create one or more Enhancements of the same type, as well as to modify any and all existing frameworks created by Graphite GTC for Customer. Customer hereby grants Graphite GTC the irrevocable, perpetual, non-exclusive, worldwide, royalty-free right and license to;
(1) Create Enhancements providing the same framework(s) created for Customer and to
(2) license, sublicense the same to other Graphite GTC customers.
Customer further authorizes Graphite GTC customer(s) to do any or all of the foregoing. Graphite GTC further agrees to include such Enhancements and those from other Graphite GTC customers into versions of the Software as may be subsequently developed by Graphite GTC and to make such versions available to Customer and other Graphite GTC customers.
2.4. Graphite GTC’s Rights. Copies of Graphite GTC Platform are subscribed to, not sold, and Customer receives no title to or ownership of Graphite GTC Platform.
Furthermore, Customer receives no rights to Graphite GTC Platform other than those specifically granted in Section 2.1 hereof. Graphite GTC shall at all times retain full and exclusive right, title and ownership interest in and to Graphite GTC Platform, its libraries and frameworks, training materials, promotional materials, trademarks, documentation, and any and all intellectual property rights therein.
MAINTENANCE, UPDATES & UPGRADES
3.1. Maintenance. So long as the Subscription Agreement remains in effect between the Parties and Customer is not in breach of this agreement; Graphite GTC will provide Customer with copies of all Upgrades, without additional charge, after commercial release. Upon delivery to Customer, Upgrades will become part of Graphite GTC Platform and will be subject to the provisions of Section 2.1 above and the other provisions of this Subscription.
DISCLAIMERS
4.1. Disclaimers. GRAPHITE GTC MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GRAPHITE GTC DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS. GRAPHITE GTC DOES NOT WARRANT THAT ALL THE SOFTWARE WILL PERFORM WITHOUT ERROR THAT IT WILL RUN WITHOUT IMMATERIAL INTERRUPTION, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. GRAPHITE GTC PROVIDES NO WARRANTY REGARDING, AND WILL HAVE NO RESPONSIBILITY FOR, ANY CLAIM ARISING OUT OF:
(I) A MODIFICATION OF THE SOFTWARE MADE BY ANYONE OTHER THAN GRAPHITE GTC, UNLESS GRAPHITE GTC APPROVES SUCH MODIFICATION IN WRITING; OR
(II) USE OF THE SOFTWARE IN COMBINATION WITH ANY OPERATING SYSTEM NOT AUTHORIZED IN THE DOCUMENTATION OR SPECIFICATIONS OR WITH HARDWARE OR SOFTWARE SPECIFICALLY FORBIDDEN BY THE DOCUMENTATION OR SPECIFICATIONS.
INDEMNITY
5.1. By Customer. Customer shall indemnify, defend, and hold harmless Graphite GTC and its affiliates, directors, officers, employees, and agents ("Graphite GTC Indemnitees") from and against any and all Losses that may be imposed on, incurred by or asserted against any Graphite GTC Indemnitee, to the extent that they arise out of: (i) any breach by Customer of any of its obligations under this Agreement; (ii) any negligent or more culpable act or omission of Customer, including any injury to persons or property; or (iii) any alleged violation of the intellectual property or proprietary rights of a third party, including those of a Customer employee, arising from (a) any use by Graphite GTC of Customer data or records in a manner or for a purpose contemplated by this Agreement or (b) Customer’s use of the Services or deliverables provided hereunder in a manner or for a purpose or in a combination not expressly contemplated by this Subscription Agreement. Notwithstanding the foregoing, Customer shall not have any obligation to indemnify hereunder with respect to a Loss to the extent that it arises out of (c) the negligent or more culpable act or omission of Graphite GTC or any Graphite GTC Indemnitee, or (d) any breach of this Agreement by Graphite GTC or any Graphite GTC Indemnitee. With regard to third party claims under subsection (iii) above, Graphite GTC agrees to (c) send Customer written notice of any such claim, suit, allegation or proceeding relating to such infringement promptly after Customer receives written notice of the same; (bb) give Graphite GTC authority to proceed as contemplated herein, and; (cc) at Graphite GTC' expense, give Graphite GTC proper and reasonable information and assistance to settle and/or defend any such claim, suit or proceeding.
5.2. Exclusions. Graphite GTC's indemnification obligations do not apply to the extent that the Claim arises out of:
Customer’s violation of this Subscription;
Customer's failure to incorporate an Update that would have avoided the alleged claim, provided Graphite GTC offered such Update without fees or charges not otherwise required pursuant to this Subscription;
Use of Graphite GTC Platform in combination with hardware or software not approved by Graphite GTC: (i) that is specifically forbidden by the Documentation or Specifications; or (ii) that is not designated in the Documentation or Specifications as available for interface with the Software.
SOFTWARE AUDIT
Graphite GTC may audit Customer’s use of the Software after providing Customer with written notice not less than 5 days in advance of such audit.
Customer will cooperate with the audit as reasonably required by providing access to the Facility and to any books, computers, records, or other information that relate or may relate to use of the Software. Such audit will not unreasonably interfere with Customer's business activities. In the event that an audit reveals unauthorized use of the Software, Customer will reimburse Graphite GTC for the reasonable cost of the audit, in addition to such other rights and remedies as Graphite GTC may have, including additional Subscription fees at Graphite GTC's then current rates.
TERM & TERMINATION
7.1. Term. The terms of this Subscription Agreement shall become effective as of the Graphite GTC Subscription Agreement Effective Date.
7.2. Termination. This Agreement may be terminated by either party for any reason or no reason upon three (3) days' prior written notice to the other party, or immediately upon notice of any breach by the other party of the provisions of this Agreement, and in any case will terminate thirty (30) days after the date of installation. Upon termination, the license granted hereunder shall terminate and Customer shall immediately stop use of the Graphite GTC Platform.
7.3. Remedies. Section 5 shall not limit either Party's remedies in the event of a material breach of this Subscription.
7.4. Survival. Regardless of the circumstances of termination or expiration of this Subscription, the provisions of Sections 2.2, 2.3, 2.4, 5, 7 and 8 of this Subscription and any provisions in any Schedule that by their nature would survive the termination or expiration and continue according to their terms.
MISCELLANEOUS
8.1. Notices. Notices pursuant to this Subscription will be sent to the addresses provided in this Subscription.
8.2. No Waiver. Neither party will be deemed to have waived any of its rights under this Subscription by lapse of time or by any statement or representation other than (a) by an authorized representative and (b) in an explicit written waiver. No waiver of a breach of this Subscription will constitute a waiver of any prior or subsequent breach of this Subscription.
8.3. Assignment & Successors. Neither party may assign this Subscription or any of its rights or obligations hereunder without the other Party's prior written consent, which consent shall not be unreasonably withheld or delayed. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
8.4. Conflicts among Exhibits. In the event of any conflict between the terms of this main body of this Subscription and those of any Exhibit, the terms of this main body will govern.
8.5. Execution in Counterparts. This Subscription may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
8.6. Construction. The parties agree that the terms of this Subscription result from negotiations between them. This Subscription will not be construed in favor of or against either party by reason of authorship.
8.7. Amendment. This Subscription may not be modified except (a) by authorized representatives of each party and (b) in a written contract signed by both parties.
EXHIBIT A
RESTRICTIONS ON USE
Customer shall not:
BY COMPLETING THE INSTALLATION OF THIS SOFTWARE, THE CUSTOMER AGREES TO ALL TERMS SPECIFIED IN THIS SUBSCRIPTION AGREEMENT.