THIS SOFTWARE LICENSE AGREEMENT (the “Agreement”) is entered into between licensee as “Licensee” and SharePointXperts. LLC (“SPX”) as “Licensor” for the Bamboo Solutions Software, associated media and online, electronic or printed documentation (collectively, the “Software”). By installing, copying, or otherwise using the Software, Licensee agrees to be ound by all of the terms and conditions of this Agreement. Please read this document carefully before installing, copying or using the Software. If Licensee does not agree with the terms and conditions of this Agreement, do not install, copy or use the Software.
1. Grant of License; Software Use Restrictions. In consideration for Licensee’s payment of any applicable license fees for the Software, SPX hereby grants to Licensee a limited, non-exclusive, non-transferable (except as expressly provided in Section 4 below) license and right to use the Software in accordance with this Agreement, without the right to sublicense the Software. SPX offers several license types depending on the intended use of the Software, and Licensee may only use the Software according to the license purchased.
Single User License. If Licensee has purchased a Single User License, Licensee is granted to license to install, use and execute the Software in object code format solely on a single computer for a single user. Under no circumstances may Licensee store, use, copy or allow the use of the Software in any manner on more than one (1) computer at a time. In order to effect the Single User License rights hereunder, Licensee may install the Software by copying it onto the hard disk drive or into the CPU memory of a single computer for use thereon, and upon doing so, the terms and conditions of this Agreement shall apply to such license.
Developer Subscription. If Licensee has purchased a developer subscription, Licensee may only use the Software to design and develop programs and to test or demonstrate those programs on any number of devices for the time period specified. Using the Software in any other way, such as for production deployment, including production related staging, mirror or redundancy, is prohibited. Licensee’s subscription terminates when Licensee’s subscription expires. SPX will send Licensee a quote by email for the renewal before Licensee’s developer subscription expires. If SPX does not receive either a purchase order or payment for the subscription renewal prior to the date that Licensee’s subscription expires, this Agreement shall terminate, and Licensee must stop using the Software and destroy all copies of the Software.
Server License. If Licensee has purchased a Server License, Licensee is granted a license to use the Software in object code format solely on the type of server and number of servers identified in the SPX quote to Licensee (“Quote”) or written order by Licensee (“Order”).
The Software runs on a Microsoft SharePoint® Platform, in the versions supported by SPX as set forth in published product documentation. The Software requires at least one of the following Microsoft products to be operational, which products are sold separately by Microsoft: Microsoft Office SharePoint Server; Windows SharePoint Services; or Microsoft SharePoint Portal Server.
The Software is provided to Licensee for its “Internal Use” only. For purposes herein, “Internal Use” means use of the Software by Licensee’s employees or authorized contractors or agents, including without limitation, contractors providing outsourcing or hosting services to Licensee; provided, however, that Licensee (a) identifies such authorized contractors or agents to SPX, and (b) assumes full responsibility for compliance with the terms and conditions of this Agreement by any such third parties. Licensee may not use the Software for the benefit of others, such as a service offering, service bureau application, application service provider, outsourcing, or other means of providing a service to any third party.
Licensee may not exceed the permitted use of the Software that has been granted to Licensee through an Order or the express rights granted herein. Licensee may make full or partial copies of the Software solely as necessary for backup or archival purposes. Licensee agrees that (i) Licensee’s use and possession of such copies shall be solely under the terms and conditions of this Agreement, and (ii) Licensee shall place the same proprietary and copyright notices and legends on all such copies as included by SPX on the authorized copy(ies) of the Software that Licensee received from SPX.
In addition to the other restrictions included herein, Licensee agrees that Licensee will not, nor have any third party act on its behalf to, circumvent or bypass any technological protection measures in or relating to the Software, separate components of the Software for use on different devices, download, reproduce, modify, enhance, change, prepare derivative works, reverse engineer, decompile or disassemble any portion of the Software, except as expressly permitted by SPX. If Licensee disposes of any media, hardware or device containing the Software, Licensee will ensure that Licensee has completely erased or otherwise destroyed any Software contained on such media or stored in such apparatus. Except as expressly provided in Section 4 below, Licensee may not distribute, lease, transfer for profit, loan or otherwise convey the Software or any portion thereof to anyone. Licensee shall not disclose results of any Software benchmark tests without prior written consent from SPX. The Software may not be used for purposes of competitive analysis or development of a competitive product. Licensee may not use the Software in any unauthorized manner that could interfere with anyone else’s use of the Software. Migration Bridge Licenses. As a courtesy, SPX will provide bridge license to those accounts that are current and active on support, that do not have a delinquent account, at no additional charge for a duration less than 60 days. The number of bridge licensee needed will be determined by SPX support team by reviewing the Licensee farm. Any instance within your environment where the product is being used for migration purposes for longer than 60 days will need a bridge license at an additional cost valid for a one-year period from the date of purchase. SPX reserves the right to change the cost for the bridge license at any given time without prior notice to Licensee.
2. Orders; Payments. For purposes herein, an “Order” means the written document or documents issued by Licensee which specify the Software and services to be delivered to Licensee. An Order may take any written form, including but not limited to, an email or an authorization to download the Software in connection with a Quote, an Order, “Purchase Order,” “Letter of Authorization,” “Work Authorization,” “Request,” or “Statement of Work.” Each Order shall constitute a contract between Licensee and SPX for the delivery of the Software and services specified in the Order; provided, however, in the event of a conflict between the terms of this Agreement and any Order, this Agreement shall control and govern, unless expressly stated to the contrary in the Order. Any changes to an Order must be indicated in writing and agreed to by SPX.
All payments shall be made by Licensee in accordance with the terms of an Order or in the absence thereof, within thirty (30) days of an invoice from SPX. Licensee shall be responsible for all import/export fees, duties, or taxes due or incurred with respect to the Software or services provided hereunder. Order/ Invoices unpaid 30 days past the billing date may be deemed delinquent and subject to an interest charge of 1.0% per month. SPX reserves the right to deny product support to all Licensee that have an unpaid order/ invoice for the duration that the order is delinquent. This policy on delinquent accounts supersedes all other contractual obligations between SPX and the Licensee. Support dates will not be extended to accommodate for the duration that support has been denied due to a delinquent account and will remain the same dates as outlined on the quote.
3. Ownership of Software and Media. Licensee agree and acknowledge that SPX transfers no ownership interest in the Software, in the intellectual property in any Software or in any Software copy, to Licensee under this Agreement or otherwise, and that SPX and its licensors reserve all rights not expressly granted to Licensee hereunder. After Licensee pays any applicable license fees for the Software, Licensee will own the media on which the Software was originally provided to Licensee hereunder, but SPX and its licensors shall retain ownership of all Software and copies of the Software or portions thereof embodied in or on such media. Licensee shall maintain all original license keys and product material, including original version files, as license keys and product information will not be stored by SPX.
4. Transfer Restrictions. Licensee may transfer the license rights in the Software granted to Licensee under this Agreement solely to an affiliate or successor-in-interest who acquires all or substantially all of Licensee’s assets, provided that: (i) Licensee notifies SPX of such transfer in writing; (ii) such transferee is not a competitor of SPX; (iii) such transferee agrees in writing to accept the terms and conditions of this Agreement, and (iv) Licensee transfers all Software, including all copies thereof, to such transferee. Except as provided in this Section, Licensee may not sublicense, transfer, or assign this Agreement or any of Licensee’s rights or obligations under this Agreement, in whole or in part.
5. United States Government Use. If the Software is acquired by or on behalf of an entity of government of the United States of America, the following provision applies: “U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND. Use, duplication or disclosure of Software by the Government is subject to Restricted Rights and the restrictions as set forth in FAR 52.227.19(c)(2) or subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227.7013 and/or in similar or successor clauses in the FAR or the DOD or FAR Supplement. Unpublished rights are reserved under the Copyright Laws of the United States. Contractor/manufacturer is SharePointXperts, LLC.”
6. Export Restrictions. The Software is exported from the United States in accordance with the United States Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Licensee agrees that Licensee will not: (i) export or re-export the Software, directly or indirectly, to Iran, Syria, Sudan, Cuba or North Korea; or (ii) release the Software to a person on the denied persons list, unverified list, entity list, specially designated nationals list, debarred list or nonproliferation sanctions list (for reference, see http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm). The foregoing obligations will apply to Licensee unless the Office of Export Licensing of the U.S. Department of Commerce has granted authorization to Licensee in writing for the export or re-export of the Software. Licensee’s obligations under this Section shall survive any termination of this Agreement.
7. Enforcement of Terms; Termination. If Licensee fails to fulfill any of Licensee’s obligations under this Agreement, SPX and/or its licensors may pursue all available legal remedies to enforce this Agreement, and SPX may, at any time after Licensee’s default of this Agreement, terminate this Agreement and all licenses and rights granted to Licensee under this Agreement. Licensee agrees that any third party licensors referenced in the Software are third-party beneficiaries of this Agreement, and may enforce this Agreement as it relates to their intellectual property. Licensee further agrees that, if SPX terminates this Agreement for Licensee’s default, Licensee will, within thirty (30) days after any such termination, deliver to SPX or render unusable all Software originally provided to Licensee hereunder and any copies thereof embodied in any medium, and provide a written certification by an officer of Licensee of the same.
8. DISCLAIMER OF WARRANTY. SPX WARRANTS THAT THE SOFTWARE WILL, FOR A PERIOD OF NINETY (90) DAYS AFTER THE INSTALLATION OF THE SOFTWARE, FUNCTION SUBSTANTIALLY IN ACCORDANCE WITH ITS PUBLISHED DOCUMENTATION. SPX FURTHER WARRANTS THAT THE SOFTWARE WILL BE COMPATIBLE WITH THE MICROSOFT SOFTWARE REQUIRED FOR ITS USE. SPX PROVIDES NO FURTHER WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR SYSTEMS INTEGRATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY SPX EMPLOYEE, REPRESENTATIVE OR DISTRIBUTOR WILL CREATE A WARRANTY FOR THE SOFTWARE, AND LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
If, upon written notice from Licensee that the Software fails to meet the warranties set forth herein, SPX will, at its option and expense, promptly repair or replace the Software so that it conforms to this Agreement. If SPX fails to replace or repair the Software within thirty (30) days after receipt of notice from Licensee specifying a failure under this Section, Licensee may terminate this Agreement with respect to the non-conforming Software. Licensee acknowledges that the foregoing reflects all of the warranties with respect to the Software.
9. Intellectual Property Indemnification. If any third party brings a suit against Licensee that is based on a claim that the Software, solely as furnished to Licensee under this Agreement, constitutes direct infringement of any patent issued by, or copyright registered in, the United states, SPX shall defend such suit or proceeding and shall pay any damages and costs finally awarded therein against Licensee with respect to such matter, provided that Licensee promptly informs SPX of any such claim, furnish SPX with a copy of each communication, notice or other action relating to the alleged infringement and give SPX the authority, information and assistance necessary to settle, compromise or litigate such suit or proceeding. Following notice of a claim or a threatened or actual suit, SPX may, without obligation to do so, at the sole option of SPX: (a) procure for Licensee the right to continue to use the Software as furnished; (b) replace or modify the Software to make it non-infringing; or (c) discontinue Licensee’s license for the Software and refund to Licensee the license fee that Licensee paid for the specific infringing Software, less a reasonable value for use, determined by prorating such license fee on the basis of a thirtysix (36) month straight line depreciation method, applied to the period of actual use. SPX shall not be obligated to defend or be liable for costs and damages if the infringement or claim thereof arises out of: (i) use or combination of Software with products or data not provided by SPX, (ii) use of other than the latest unmodified release of Software made available to Licensee by SPX if such infringement would have been avoided by the use of such release of Software, (iii) modification of the Software by anyone but SPX, (iv) use of Software after receiving notice, or having reason to believe, that Software infringes a patent or copyright of a third party, or (v) a claim based on any portion of the Microsoft® software that may be included with Software.
The foregoing states Licensee’s exclusive remedy and the entire liability of SPX with respect to infringement by the Software, and SPX shall have no liability with respect to any other intellectual property right.
10. Limitation of Liability. IN NO EVENT SHALL SPX OR ITS LICENSORS BE LIABLE TO LICENSEE FOR ANY SPECIAL, CONSEQENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION THE COST OF COVER, DAMAGES ARISING FROM LOSS OF DATA, USE, PROFITS OR GOODWILL, OR PROPERTY DAMAGE), WHETHER OR NOT SPX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. LIABILITY of SPX ARISING OUT OF THIS AGREEMENT AND/OR LICENSEE’S USE OR POSSESSION OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY AND ALL CLAIMS COMBINED, WILL NOT EXCEED THE AMOUNT OF THE LICENSE FEES PAID BY LICENSEE FOR THE DEFICIENT SOFTWARE OR SUPPORT PROVIDED UNDER THIS AGREEMENT.
11. Governing Law; Jurisdiction; Attorneys’ Fees. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia, excluding its choice of law rules. For any dispute arising from this Agreement, the parties expressly agree to the sole and exclusive jurisdiction and venue of the courts located in Fairfax County, Virginia, and each party freely and expressly waives its right to a trial by jury. The prevailing party in any such proceeding or dispute shall be entitled to recover its costs and expenses incurred, including without limitation, all courts costs and fees, and reasonable attorneys’ fees and expenses.
12. Technical Support Terms.
(a) Definitions. As used herein the following capitalized terms have the meanings set forth
- “Correction” means, without limitation, a work-around, maintenance release, patch and/or documentation change, as SPX deems appropriate.
- “Defect” means a material failure of the Software to operate substantially in accordance with the applicable user guides and reference manuals.
- “Update” means a maintenance or minor release of the Software that provides corrections or performance improvements, is designated by SPX as an Update and is generally made available to all technical support customers.
- “Upgrade” means a major release of the Software that provides new features or functional enhancement, is designated by SPX as an Upgrade and is generally made available to all technical support customers.
(b) Technical Support. During any 12/24/36-month support period for which Licensee has pre-paid the required support payment, SPX will provide Licensee:
- Notification, if Licensee has requested to be notified, when Updates are available for downloading from the website at www.bamboosolutions.com;
- Notification, if Licensee has requested to be notified, when Upgrades are available for downloading from the website; and
- Access to the Support Portal on the website through which Licensee may:
(A) Download Updates when commercially available;
(B) Download Upgrades when commercially available;
(C) Report Defects in the Software and obtain Corrections as described herein and in accordance with the types of response and timing referenced on the website at www.bamboosolutions.com;
(D) Request General advice on implementation, operation, functionality and use of the Software as described on the website at www.bamboosolutions.com;
(E) Participate in community forums, review the extensive knowledge base and obtain usage tips and other useful information regarding the Software, including up-to-date information on current releases, Take SharePoint® to New Heights. – 8 – Version 3.0, last modified on 7/22/2019 product compatibility, restrictions, enhancements, workarounds and fixes; and
(F) Access on-line documentation regarding the Software, including application notes that include installation instructions, release notes and Frequently Asked Questions (FAQs).
(c) Defect Correction.
- When Licensee reports a suspected Defect in the Software to SPX using its Support Portal, SPX will attempt, based upon information provided by Licensee, to recreate the suspected Defect. If the Defect is confirmed, SPX will use commercially reasonable efforts, given the nature and scope of the Defect, to make available to Licensee through the Support Portal, a Correction in accordance with the guidelines set forth on the website at www.bamboosolutions.com. SPX will make available to all technical support customers live chat, telephone call back and live meeting support as appropriate and warranted to confirm Defects and develop Corrections.
- SPX will not be responsible for correcting Defects in any release of the Software other than the most recent release of the Software, provided that SPX shall continue to support the prior release superseded by recent release for a reasonable technical support period.
- Licensee agrees to implement within a reasonable time all Corrections provided by SPX hereunder.
(d) Limitations. SPX will not be obligated to provide technical support relating to problems, errors or malfunctions caused by (i) malfunction of the computer system and communications network on which Licensee have installed and are using the Software, (ii) other software installed in the same SharePoint environment not licensed ursuant to this Agreement, (iii) any use of the Software in disregard of any known adverse consequences, including without limitation the failure of user to make appropriate backups, warning messages, and other written instructions, (iv) any modification to the Software not authorized by SPX, (v) Mainstream Support of a given SharePoint Platform has been retired by Microsoft, or (vi) any other cause not attributable to SPX.
(e) Renewal of Support.
- For an additional fee, Licensee may obtain technical support. Unless renewed in accordance herewith, technical support will cease on the last day of the support period for which Licensee have paid the additional technical support fee.
- Support fees for additional support periods must be paid in advance on or prior to last day of the support period for which Licensee have paid the required support fee. Approximately forty-five (45) days prior to the termination of the then current support period, SPX will contact Licensee for renewal of technical support. The support fee due for the next support period shall be the currently applicable list price for renewal of technical support as of the date of quote or invoice.
- SPX reserves the right to withdraw technical support of the Software, and to alter the prices, terms and conditions for technical support in advance of any renewal of support. Any such withdrawal or alterations will become effective as of such renewal date.
(f) Reinstatement of Support. If Licensee allows technical support to expire, in order to reinstate support of the Software, Licensee may be required to pay to SPX a reinstatement support fee, the then current annual support fee, and also pay, if Licensee is not licensing the then-current release of the Software, an upgrade license fee for the current release of the Software.
(g) Required Identifier. In order to access the Support Portal, Licensee must provide the identifier issued to Licensee when Licensee licensed the Software. Upon entry of such identifier access will be granted if Licensee has paid in full the required maintenance fee.
(h) Termination of Technical Support. Notwithstanding Section 4 above, resale, assignment, or transfer of the technical support provided by SPX is strictly prohibited and will be grounds for termination of the technical support.
(i) Additional Technical Support Terms.
Unless otherwise arranged through a separate service agreement, SPX is not responsible for validating an organization’s existing SharePoint environment or configuration. SPX expects that Licensee’s SharePoint environment adheres to Microsoft® best practices. Service pack and cumulative Updates should be tested and a rollback plan put in place before any Software products or updates are installed prior to production. SharePoint installation, configuration, health checks, and maintenance are all available as SPX Service Agreements at additional cost.
If a technical support issue arises, as part of SPX standard troubleshooting efforts, SPX may request that a new web application and/or a new site collection be created with an Out Of The Box (OOTB) SharePoint team site, and SPX Software products deployed and configured within the test area before production.
If the Software works as designed in the new web application/site collection, it will be assumed that underlying environmental constraints are responsible for the issue. In the event standard troubleshooting does not allow for identification and remediation of the root cause, Licensee will be advised to utilize the Software in the new web application and/or site collection, or independently resolve the issues on the original site.
It is Licensee’s responsibility to conduct all tests requested by SPX technical support personnel as part of any troubleshooting effort, including utilization of a supported version of Internet Explorer, the only browser certified for use with SPX products.
Refer to 2. Orders; Payments section regarding delinquent accounts. SPX reserves the right to refuse or deny product support for delinquent accounts. A delinquent account is when the Licensee has not paid the Order/ Invoice within the specified term outlined in the quote and/or Invoice. Support dates will not be altered in the event of the refusal of product support to a delinquent account.
13. Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility or sabotage; act of God; Internet, telecommunication or electrical outage that is not caused by the obligated party; Government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party (collectively, “Force Majeure Events”). Each party agrees to use reasonable efforts to mitigate the effect of any Force Majeure Events. If such Force Majeure Event continues for more than ninety (90) days, either party may cancel unperformed services upon written notice. This Section does not excuse Licensee’s obligation to pay for the Software or support as provided herein.
– SharePointXperts, LLC