Software License Agreement
This Software License Agreement (this “Agreement“), effective as of the date of an Order incorporating this Agreement (the “Effective Date“), is by and between TransAct Technologies Incorporated, a Delaware corporation with offices located at One Hamden Center, 2319 Whitney Avenue, Suite 3B, Hamden, Connecticut 06518 (“TransAct“) and the entity identified on an Order (“Customer“). TransAct and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
(a)”Documentation” means TransAct’s quick start guides, online help, user manuals, and how-to videos relating to the Software provided by TransAct to Customers electronically available at transact/tech.com.
(b)“Order” means an ordering document executed by TransAct and Customer which lists the software products TransAct shall make available to Customer and the applicable license term and fees.
(c) “Software” means the software applications and web portals designated as separate products on an Order, including any Updates provided to Customer pursuant to this Agreement. For purposes of clarification, Software does not include operating systems software pre-installed on TransAct-provided equipment.
(d) “Updates” means any updates, bug fixes, patches, or other error corrections to the Software that TransAct generally makes available free of charge to all Customers of the Software.
2. License; Software Hosting; Support Services.
(a) License Grant. Subject to and conditioned on Customer’s payment of fees specified in applicable Orders and compliance with all terms and conditions of this Agreement, TransAct hereby grants Customer a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 11(g)) license during the Term to: (i) use the Software solely for Customer’s internal business purposes at the locations or on the number of machines indicated on an applicable Order; and (ii) use and make a reasonable number of copies of the Documentation solely for Customer’s internal business purposes in connection with Customer’s use of the Software.
(b) Use Restrictions. Customer shall not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not at any time, directly or indirectly:
(i) use the Software or TransAct-provided equipment to store, transmit, process, or otherwise handle (A) infringing material, unsolicited marketing emails, libelous material, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights, and (B) social security numbers, passport numbers, driver’s license or other government identification numbers, physical or mental health information or other information subject to the Health Insurance Portability and Accountability Act or similar legislation, personal financial account information, debit or credit card numbers, or other information subject to the Gramm-Leach-Bliley Act or similar legislation, or any Special Categories of Data under applicable EEA data protection regulations (collectively, “Prohibited Data”).
(ii) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part;
(iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation;
(iv) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;
(v) attempt to gain unauthorized access to the Software or related systems or networks;
(vi) use the Software in conjunction with any viruses, worms, malware, spyware, or other malicious or harmful files, programs, code, or similar material;
(vii) remove any proprietary notices from the Software or the Documentation; or
(viii) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(c) Hosting. During the Term, TransAct shall host and make available to Customer all webbased components of the Software in accordance with Schedule A hereto.
(d) Support Services. During the Term, TransAct shall make available to Customer customer support services regarding the Software, in accordance with Schedule A hereto.
3. Customer Responsibilities. Customer is responsible and liable for all uses of the Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.
4. Financial Terms.
(a) Unless otherwise specified in an applicable Order, all fees shall be invoiced in advance of the applicable billing period and are due and payable within thirty (30) days of Customer’s receipt of the applicable invoice. In the event that different payment terms are specified in an applicable Order, such payment terms shall control over the foregoing sentence. Fees specified on Orders are exclusive of taxes which will be charged as applicable. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes applicable to Customer’s purchase of the Software licenses. All payment obligations are noncancelable and non refundable. Invoices will be sent to the email address provided by Customer to TransAct and will be deemed received upon being sent by TransAct. Unless expressly set forth otherwise, all amounts are in USD.
(b) Upon termination of the Agreement for any reason, except for termination by Customer for material breach, Customer must pay TransAct for any unpaid amounts through the remainder of the Term. TransAct may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law.
(c) In the event Customer fails to pay any fee, charge, or other bill when due, Customer agrees that TransAct may use a third party collection agency to collect such past-due amounts (as well as any other fees, charges, or other bills that may be due) and Customer agrees to pay reasonable collection costs, including reasonable attorney fees, whether or not litigation has commenced, and all costs of litigation incurred.
5. Confidential Information.
(a) Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, that is identified as “confidential” or which a reasonable person would understand to be confidential based on the nature of the information (collectively, “Confidential Information“). Without limitation, the Documentation and the Software and its content are Confidential Information of TransAct. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party.
(b) Treatment of Confidential Information. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees or agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings.
(c) Upon Termination. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership; Feedback.
(a) Customer acknowledges that, as between Customer and TransAct, TransAct owns all rights, title, and interest, including all intellectual property rights, in and to the Software and Documentation.
(b) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to TransAct by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), TransAct is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to TransAct on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and TransAct is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although TransAct is not required to use any Feedback.
7. Warranty Disclaimer.
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND TRANSACT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TRANSACT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TRANSACT MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(a) TransAct Indemnification. TransAct will defend, indemnify, and hold Customer (and Customer’s officers, directors, employees, agents, and affiliates) harmless at TransAct’s expense (including costs, damages, and reasonable attorney’s fees) from and against any third party claim against Customer to the extent that such claim alleges that the Software violates a valid copyright, trademark or trade secret, so long as Customer promptly notifies TransAct of the claim in writing, cooperates with TransAct in the defense, and allows TransAct to solely control the defense or settlement of the claim provided that TransAct will not (without Customer’s prior written consent) accept any related settlement that requires Customer to make an admission or imposes any obligation, restriction, or liability on Customer that is not covered by this indemnification. If such a claim appears likely, then TransAct may modify the Software, procure the necessary rights, or replace it with the functional equivalent. If TransAct determines that none of these are reasonably available, then TransAct may terminate the applicable Order and refund any prepaid and unused fees. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND TRANSACT’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
(b) Customer Indemnification. Customer will defend, indemnify, and hold TransAct (and TransAct’s officers, directors, employees, agents, and affiliates) harmless at Customer’s expense (including costs, damages, and attorney’s fees) from and against any third party claim, suit, fine, action, or allegation based upon or arising from, directly or indirectly (i) Prohibited Data, (ii) Customer’s breach of this Agreement, or (iii) Customer’s misappropriation of the Software. TransAct will: promptly notify Customer in writing of the claim and allow Customer to control, and will cooperate with Customer in, the defense and any related settlement; provided that Customer will not (without TransAct’s prior written consent) accept any related settlement that requires TransAct to make an admission or imposes any obligation, restriction, or liability on TransAct that is not covered by this indemnification.
9. Limitations of Liability.
Except as arising from or related to Customer’s misappropriation or unauthorized disclosure of any Software, neither Party will be liable for any indirect, special, incidental or consequential damages arising out of or related to this Agreement (including, without limitation, costs of delay; loss of data, records or information; and lost profits, revenue or anticipated cost savings), even if it knows of the possibility of such damage or loss. Except for liability arising from or related to either Party’s obligations under the ‘Indemnity’ section herein, Customer’s payment obligations, or Customer’s intentional misappropriation or unauthorized disclosure of any Software, each Party’s total liability arising out of or related to this Agreement (whether in contract, tort or otherwise) will not exceed the amount paid by Customer to TransAct within the 12-month period prior to the event that gave rise to the liability; provided that TransAct’s total liability arising from its indemnification obligations herein will not exceed $100,000. In addition, TransAct shall not be liable for any damages or costs arising from or related to Prohibited Data.
10. Term and Termination.
(a)Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect (subject to the termination provisions below) as long as a license for any Software is in effect in accordance with the terms of an Order (the “Term“).
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) TransAct may suspend or terminate any Order and this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after TransAct’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(b) or Section 5;
(ii) either Party may terminate this Agreement, effective on written notice to the
other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon
written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate, and, without limiting Customer’s obligations under Section 5 (Confidential information), Customer shall cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing to the TransAct that the Software and Documentation has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(d) Survival. This Section 10(d) and Sections 1, 4, 5, 6, 7, 8, 9, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
(a) Entire Agreement. This Agreement, together with any Orders, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and the Orders and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between this Agreement, any Order, and any other documents incorporated herein or therein by reference, the following order of precedence governs: (a) first, this Agreement; (b) second, any applicable Order; and (c) third, any other documents incorporated herein or
therein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or facsimile or email (each with confirmation of receipt) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section. Customer shall address Notices to TransAct as follows:
TransAct Technologies Incorporated
One Hamden Center
2319 Whitney Avenue, Suite 3B
Hamden, CT 06518
Tel: (203) 859-6800
Fax: (203) 949-9048
TransAct shall address Notices to Customer at the address set forth on the applicable Order. Either Party may change its Notice address by providing Notice to the other Party in accordance with this Section
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Connecticut without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Connecticut. Each party agrees and hereby submits to the exclusive personal jurisdiction and venue of any court of competent jurisdictions within the State of Connecticut with respect to any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder.
(g) Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of TransAct, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
(h) Export Regulation. The Software may be subject to US export control laws, including
the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, reexporting, releasing, or otherwise making the Software available outside the US.
(i) US Government Rights. Each of the Documentation and the Software is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government Customers and their contractors.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
1. Software Availability Standard:
Excluding Scheduled Downtime and Third Party Outages, TransAct shall make the hosted Software Available 97.75 of the time, measured in total minutes during the applicable month.
“Available” means any hosted Software is available and operable for remote electronic access and use by Customer.
“Scheduled Downtime” means all scheduled outages, in whole or in part, for maintenance and support, provided that
(i)TransAct shall notify Customer at least 2 days in advance of all scheduled outages,
(ii)No such scheduled outage shall last longer than one hour or occur more frequently than once a week, and
(iii) All such scheduled outages occur between the hours of 11:00 P.M. EST and 7:00 A.M. EST.
“Third Party Outages” means periods of downtime caused, in whole or in part, by
(i) Customer or any of Customer’s employees, agents, or affiliates, or
(ii) Internet or other network traffic problems which are completely outside of the control of
TransAct and cannot be mitigated by TransAct.
1. Support Services:
TransAct shall provide unlimited telephone and e-mail support to Customer between the hours of 8:30 A.M. EST and 8:00 P.M. EST, Monday through Friday, except during holidays.Written answers to most frequently asked questions, along with videos explaining the use of the Software, are available on TransAct’s support site: www.transact-tech.com/service-and-support.