Last updated April 3, 2021
END-USER LICENSE AGREEMENT
This End-User License Agreement (this “Agreement”) is between BriefCatch, LLC (“Vendor”) and you (“Customer”).
Vendor provides a software application known as BriefCatch™ (the “Software”), and the parties have agreed that Vendor will provide the Software to Customer and also provide maintenance services related to the Software.
Customer acknowledges that the Software provides editing suggestions only, and that in no way do any of the suggestions, in isolation or in combination, constitute legal advice. Customer is solely responsible for all writing and editing decisions made in connection with the Software.
Customer acknowledges that any license key provided in connection with the Software is unique to that Customer and that Customer shall not share any such license key with anyone else without express written permission from Vendor.
Therefore, in consideration of the terms set forth below, the parties agree to the following.
TERMS AND CONDITIONS
- DEFINITIONS. The following capitalized terms have these meanings whenever used in this
- “Documentation” means the Software’s standard user manual.
- “Software” means Vendor’s BriefCatch™ software, in object code format.
- “Specifications” means Vendor’s standard specifications for the Software set forth in its then-current Documentation.
- “Term” is defined in Section 1 below.
- “Upgrade” means a new version, update, or upgrade of the Software, in object code format.
- LICENSES & DELIVERY.
- License. Vendor hereby grants Customer a nonexclusive license to download, reproduce, and use the Software during the Term as long as Customer complies with the restrictions set forth in Section 2 below. The license is limited to TBD.
- Restrictions on Software Rights. Copies of the Software created or transferred under this Agreement are licensed, not sold, and Customer receives no title to or ownership of any copy or of the Software itself. Nor does Customer receive any rights to the Software other than those specifically granted in Section 1 above. Without limiting the generality of the foregoing, Customer shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software; (b) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; or (c) reverse-engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code.
- Documentation: Customer may reproduce the Documentation as reasonably necessary to support internal use of the Software.
- Delivery. Vendor shall provide the Software and Documentation to Customer, through a reasonable system of electronic download, within two days of the Effective Date.
- Upgrades. During each Term, Vendor shall provide Customer with copies of all Upgrades, without additional charge, promptly after commercial release. Upon delivery to Customer, each Upgrade will constitute an element of the Software and will be subject to this Agreement’s terms related to Software, including, without limitation, license, warranty, and indemnity terms.
- FEES & REIMBURSEMENT.
- Fees. Customer shall pay Vendor as follows:
- License Fees. For the licenses granted in Section 1 above, $ TBD (“License Fees”) per Term. At the end of the Term, the licenses granted in Section 2.1 shall automatically renew for the same time period as that in the initial Term; provided that (i) Vendor shall provide Customer with 30 days’ notice of any increase in License Fees and (ii) Customer may cancel such renewal by providing Vendor at least seven days’ notice before the end of the Term.
- Invoices. Payment against all invoices will be due within 30 days from the receipt of invoice.
- Fees. Customer shall pay Vendor as follows:
- IP & FEEDBACK.
- IP Rights in the Software. Vendor retains all right, title, and interest in and to the Documentation and Software, including, without limitation, Upgrades, except to the extent of the limited licenses specifically set forth in Sections 1 (Licenses) and 2.3 (Documentation). Customer recognizes that the Software and its components are protected by copyright and other laws.
- Feedback. Customer hereby grants Vendor a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) Customer communicates to Vendor during the Term, without compensation, with no obligation to report on such use, and with no other restriction. Vendor’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses. Notwithstanding the provisions of Article 6 (Confidential Information) below, Feedback will not be considered Customer’s Confidential Information. (“Feedback” refers to any suggestion or idea provided by Customer to Vendor for modifying any of Vendor’s products or services, including, without limitation, all intellectual property rights in any such suggestion or idea.)
- CONFIDENTIAL INFORMATION.
- Confidential Information Defined. “Confidential Information” refers to the following information that the Vendor discloses to the Customer: (a) any document Vendor marks “Confidential”; (b) any information Vendor orally designates as “Confidential” at the time of disclosure, provided Vendor confirms such designation in writing within seven business days; (c) the non-public features, functions, and sensitive information that Customer should reasonably consider a trade secret or otherwise confidential, and that is also significantly different from public information. Notwithstanding the foregoing, Confidential Information does not include information that (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; (iv) is approved for release in writing by Vendor; or (v) is integral to use of BriefCatch in legal practice, for example, explaining editing choices to clients or colleagues. Customer is on notice that the Confidential Information may include Vendor’s valuable trade secrets.
- Nondisclosure. Customer shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access to facilitate the Purpose and executes a nondisclosure agreement with Customer; and (b) shall not disclose Confidential Information to any other third party without Vendor’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Vendor of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Vendor prompt notice of any such legal or governmental demand and reasonably cooperate with Vendor in any effort to seek a protective order or otherwise to contest such required disclosure, at Vendor’s expense.
- Injunction. Customer agrees that breach of this Article 6 would cause Vendor irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Vendor will be entitled to seek injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
- Termination & Return. For each item of Confidential Information, the obligations of Section 2 above (Nondisclosure) will terminate upon termination of this Agreement; provided that such obligations related to Confidential Information constituting Vendor’s trade secrets shall continue so long as that information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Vendor or certify, in writing, their destruction. Notwithstanding the foregoing, Customer shall not be required to destroy: (1) data from disaster recovery or business continuity backups; (2) data stored in system-generated temporary folders or near-line storage; (3) archived departed employee data with limited access; and/or (4) material that is subject to legal hold obligations or commingled with other such material, provided that all such material remains confidential and is destroyed in accordance with Customer’s standard retention schedules.
- Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Vendor will retain all right, title, and interest in and to all Confidential Information.
- Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. Section 1833(b) (the “DTSA”), Customer is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
- IMMUNITY. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for disclosing a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely to report or investigate a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if that filing is made under seal.
- USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except under court order.
- REPRESENTATIONS & WARRANTIES.
- From Vendor.
- Re Function. Vendor represents and warrants that, during the term of this Agreement, the Software will perform materially as described in its Specifications.
- Re IP Rights in the Software. Vendor represents and warrants that it is the owner of the Software and of all of its components, or has a valid license thereto, and that it has and will maintain the full authority to grant the rights and licenses granted in this Agreement. Vendor’s representations and warranties in the preceding sentence do not apply if the infringement arises out of any of the conditions listed in Subsections 1(a) through 8.1(e) below. In the event of a breach of the warranty in this Subsection 7.1(b), Vendor, at its own expense, will promptly take these actions: (i) secure for Customer the right to keep using the Software; (ii) replace or modify the Software to make it non-infringing; provided that such modification or replacement will not materially degrade any functionality listed in the Specifications; or (iii) refund 8.5% of the annual licensee fee paid for the Software for every month remaining in the Term following the date after which Customer shall cease operation of the Software. Without limiting Customer’s right to terminate for breach where applicable and the provisions of Section 8.1 below (Indemnified Claims), the preceding sentence states Vendor’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Subsection 7.1(b) and for potential or actual intellectual property infringement by the Software.
- From Both Parties. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
- Warranty Disclaimers. Except for the express warranties in Sections 1 and 7.2 above, VENDOR MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Vendor does not warrant that the Software will perform without error or that it will run without immaterial interruption. Vendor provides no warranty about, and will have no responsibility for, any claim arising out of: (a) a modification of the Software made by anyone other than Vendor, unless Vendor approves that modification in writing; or (b) use of the Software by Customer along with any operating system not authorized in the Specifications or Documentation or with hardware or software specifically forbidden by the Specifications or Documentation.
- NO LEGAL ADVICE. CUSTOMER ACKNOWLEDGED AND AGREES THAT IT (I) SHALL NOT RELY ON ANY PART OF SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY OR ALL ITS EDITING SUGGESTIONS, AS LEGAL ADVICE, (II) SHALL NOT COMMUNICATE TO A THIRD PARTY THAT ANY PART OF SOFTWARE INCLUDING, WITHOUT LIMITATION, ANY OR ALL ITS EDITING SUGGESTIONS, AS LEGAL ADVICE, AND (III) SHALL NOT CLAIM TO ANYONE THAT ANY PART OF SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY OR ALL OF ITS EDITING SUGGESTIONS, IS LEGAL ADVICE.
- From Vendor.
- Indemnified Claims. Vendor shall defend, indemnify, and hold harmless Customer and Customer’s Associates (as defined below) against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of, related to, or alleging infringement of any patent, copyright, trade secret, or other intellectual property right or proprietary right by the Software. Vendor’s obligations set forth in this Section 1 do not apply if an Indemnified Claim arises out of (a) Customer’s breach of this Agreement; (b) revisions to the Software made by Customer without Vendor’s written consent; (c) Customer’s failure to incorporate Upgrades that would have avoided the alleged infringement, provided Vendor offered such Upgrades without charges not otherwise required under this Agreement; (d) Vendor’s modification of Software in compliance with specifications provided by Customer; or (e) use of the Software in combination with hardware or software not provided by Vendor. (As used in this Article 8, Customer’s “Associates” are its officers, directors, shareholders, employees, parents, subsidiaries, agents, successors, and assigns.) In the event of an Indemnified Claim, Vendor may exercise the remedies in Subsections 7.1(b)(i) through 7.1(b)(iii) above, including, without limitation, its right to terminate licenses and require return of the Software.
- Litigation & Additional Terms. Vendor’s obligations under Section 1 above will be excused if Customer’s or any of Customer’s Associates’ failure to provide prompt notice of the Indemnified Claim materially prejudices the defense. Vendor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided that Customer will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
- LIMITATION OF LIABILITY.
- Dollar Cap. VENDOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $100, UNLESS OTHERWISE PROVIDED BY LAW.
- Exclusion of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
- Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 9, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Article 9 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other repr
- Exceptions to Limitation of Liability. Sections 1 (Dollar Cap) and 9.2 (Exclusion of Consequential Damages) above do not apply to: (a) Indemnified Claims under Article 8 above (Indemnification); or (b) claims for attorneys’ fees and other litigation costs recoverable by the prevailing party in any action.
- Term & Termination.
- Term. This Agreement will remain in effect for one year from the Effective Date (the “Term”).
- Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice, effective in 30 days unless the other party first cures that breach within the 30 days.
- Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Software. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 2 (Restrictions on Software Rights) 5 (IP & Feedback), 6 (Confidential Information), 7.2 (Warranty Disclaimers), 8 (Indemnification), and 9 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
- Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
- Notices. Notices under this Agreement shall be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (a) actual receipt or (b) delivery in person, by electronic mail with emailed confirmation of receipt, or by certified mail return receipt requested.
- Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will breach this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control. If the Agreement is terminated due to a Force Majeure event, the Customer shall receive a pro rata refund for the remaining months of the Term.
- Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations under this agreement without Vendor’s express written consent. Unless prohibited by this Section 4, this Agreement will be binding on and inure to the benefit of the parties’ respective successors and assigns.
- Severability. To the extent permitted by applicable law, the parties hereby waive any law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. If a provision of this Agreement is held to be invalid or otherwise unenforceable, that provision will be interpreted to fulfill its intended purpose as much as permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
- No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
- Government Restricted Rights. The Software is provided with Restricted Rights. Use, duplication, or disclosure for or by the government of the United States, including, without limitation, any of its agencies or instrumentalities, is subject to restrictions set forth, as applicable: (i) in subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19; or (ii) in similar clauses in other federal regulations, including the NASA FAR supplement. The contractor or manufacturer is Vendor. Customer shall not remove or deface any restricted rights notice or other legal notice appearing in the Software or on any packaging or other media associated with the Software.
- Bankruptcy Rights. The rights and licenses granted to Customer in Sections 1 (License), 2.3 (Documentation) (collectively, the “License Provisions”) are licenses to “intellectual property” rights, as defined in Section 365(n) of the United States Bankruptcy Code (11 U.S.C. Sections 101, et seq.). If Vendor is subject to any proceeding under the United States Bankruptcy Code, and Vendor as debtor in possession or its trustee in bankruptcy rejects this Agreement, Customer may, under 11 U.S.C. Section 365(n)(1) and (2), retain all rights granted to it under the License Provisions to the fullest extent permitted by law. This Section 11.8 will not be construed to limit or restrict any right or remedy not set forth in this Section 11.8, including, without limitation, the right to retain any license or authority this Agreement grants under any provision other than the License Provisions.
- Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the Commonwealth of Virginia, including, without limitation, applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Fairfax, Virginia. This Section 9 governs all claims arising out of or related to this Agreement, including, without limitation, tort claims.
- Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
- Technology Export. Customer shall not (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export the Software or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Software in, or export it to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
- Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
- Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party.
IN WITNESS THEREOF, the parties have electronically executed this Agreement as of the Effective Date.