PEARL LICENSE AGREEMENT:
updated July, 2014
PEARL, FIRST PEARL, COMMUNITY PEARL, CORPORATE PEARL
Bromelkamp Company LLC (hereafter referred to as “Bromelkamp Company”) provides the Licensed Programs and licenses their use at the principal business office of the Licensee. The Licensee is responsible for the selection of the Licensed Programs to achieve its intended results, and for the installation, use, and results obtained from the Licensed Programs.
The Licensee may:
a. use the Licensed Programs on a single machine, plus the purchased number of additional machines connected in a local area network or not connected in a network;
b. copy the Licensed Programs into any machine readable or printed form only for backup or modification purposes in support of the Licensee's use of the Licensed Programs on the purchased number of machines; and
c. modify the Licensed Programs and/or merge them into another program for the Licensee's use on the purchased number of machines (any portion of these Licensed Programs whether or not modified will continue to be subject to the terms and conditions of this Agreement and shall remain the property of Bromelkamp Company).
The Licensee must reproduce and include the copyright notice "Pearl Software, First Pearl, Corporate Pearl, Community Pearl © 1997-2005 Henry A Bromelkamp,© 2008-2011 Bromelkamp Company LLC" on any copy, modification, or portion merged into another program. Licensee shall keep records of all copies of the Licensed Programs, number if permitted, and location thereof.
The Licensee may not use, copy, modify, or transfer the Licensed Programs or any copy, modification, or merged portion, in whole or in part, except as expressly provided for in this license. Licensee acknowledges Bromelkamp Company’s sole rights to the Licensed Programs and acknowledges that all tangible property delivered to the Licensee remain the property of Bromelkamp Company. Licensee shall inform its employees and agents of the obligations of Licensee hereunder and shall take reasonable precautions to keep confidential, prevent the unauthorized use, transfer, or disclosure of the Licensed Programs. Licensee agrees to cooperate in any controversy with any third party to establish Bromelkamp Company’s rights to the Licensed Programs.
If the Licensee transfers possession of any copy, modification, or merged portion of the Licensed Programs to another party, this license is automatically terminated.
In addition to the License Fee, the licensee agrees to reimburse Bromelkamp Company for any reasonable expenses, including but not limited to shipping, travel, subsistence, and expendable supplies, incurred in the installation of the Licensed Programs, training of the Licensee, and/or in providing consulting services. The Licensee agrees to pay any and all federal, state, and local taxes on the sale, distribution, installation, and use of the programs licensed hereunder.
The license is effective until terminated. The Licensee may terminate it any time by returning or destroying the Licensed Programs together with all copies, modifications, or merged programs in any form. It will also terminate upon conditions set forth elsewhere in this Agreement or if the Licensee fails to comply with any term or condition of this Agreement. The Licensee agrees upon such termination to return or destroy the Licensed Programs together with all copies, modifications, and merged portions in any form.
4. LIMITED WARRANTY.
The Licensed Programs are warranted to be free from defects and errors for a period of ninety days from the date of installation. During that time, defects and errors will be repaired at no charge. Bromelkamp Company’s sole obligation hereunder shall be to remedy any defects and errors reported within ninety days after the date of installation. All warranties are contingent upon proper use of the Licensed Programs.
Bromelkamp Company does not warrant that the functions contained in the Licensed Programs will meet the Licensee's requirements nor that the operation of the Licensed Programs will be uninterrupted or error free.
EXCEPT FOR EXPRESS WARRANTIES STATED HEREIN, BROMELKAMP COMPANY DISCLAIMS ALL WARRANTIES ON LICENSED PROGRAMS HEREUNDER INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. EXPRESS WARRANTIES ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF BROMELKAMP COMPANY ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE LICENSED PROGRAMS.
5. LIMITATION OF REMEDIES
Bromelkamp Company’s entire liability and the Licensee's exclusive remedy shall be:
1. the repair or replacement of Licensed Programs deemed to be defective during the ninety-day warranty period; or
2. if such repair or replacement of the Licensed Programs is not possible, or fails for its essential purpose, the Licensee may terminate this Agreement by returning the Licensed Programs and the Licensee's License Fee will be refunded.
6. DEFENSE OF INFRINGEMENT AND MISAPPROPRIATION CLAIMS
Agreement to protect. Bromelkamp will defend Customer against any claims made by an unaffiliated third party that any Service or Client Software infringes that party’s patent, copyright or trademark or makes intentional unlawful use of its trade secret or undisclosed information. Bromelkamp will also pay the amount of any resulting adverse final judgment (or settlement to which Bromelkamp consents). This Section provides Customer’s exclusive remedy for these claims. The term “undisclosed information" is as defined in Article 39.2 of the WTO’s TRIPs agreement.
What Customer must do. Customer must notify Bromelkamp promptly in writing of the claim and give Bromelkamp sole control over its defense or settlement. Customer must also provide Bromelkamp with reasonable assistance in defending the claim. Bromelkamp will reimburse Customer for reasonable out of pocket expenses that it incurs in providing that assistance.
Limitations on defense obligation. Bromelkamp’s obligations will not apply to the extent that the claim or award is based on:
• Customer’s use of the Service or Client Software after Bromelkamp notifies it to discontinue its use due to a third party claim;
• Customer’s combination of the Service or any related Client Software with a non-Bromelkamp product, data or business process;
• damages attributable to the value of the use of a non-Bromelkamp product, data or business process;
• Customer’s use of Bromelkamp’s trademark(s) without express written consent to do so; or
• any trade secret or undisclosed information claim, where Customer acquires the trade secret or undisclosed information (1) through improper means; (2) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (3) from a person (other than Bromelkamp) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret or undisclosed information.
Customer will reimburse Bromelkamp for any costs or damages that result from any of the above actions.
Specific rights and remedies in case of infringement. (a) Bromelkamp’s rights in addressing possible infringement. If Bromelkamp receives information concerning an infringement claim related to a Service or Client Software, Bromelkamp may, at its expense and without obligation to do so: (1) procure for Customer the right to continue to use the allegedly infringing Service and/or Client Software, (2) modify the Service and/or Client Software, or (3) replace the Service and/or Client Software with a functional equivalent, to make it non-infringing, in which case Customer will immediately stop using the allegedly infringing Service and/or Client Software after receiving notice from Bromelkamp. (b) Customer’s specific remedy in case of injunction. If, as a result of an infringement claim, Customer’s use of a Service or Client Software is enjoined by a court of competent jurisdiction, Bromelkamp will, at its option, either: (1) procure the right to continue its use; (2) replace it with a functional equivalent; (3) modify it to make it noninfringing ; or (4) terminate the License for the infringing Service and/or related Client Software and refund any amounts paid in advance by Customer for unused Services, or refund all fees prepaid by Customer prorated from the date Customer no longer has effective use of the Service.
7. LIMITATION OF LIABILITY.
Except as otherwise provided in this Section, to the extent permitted by applicable law, the liability of Bromelkamp and of Bromelkamp’s contractors to Customer arising under this Agreement is limited to direct damages up to the amount Customer paid Bromelkamp for the Service and/or Client Software giving rise to that liability during the (1) Term or (2) twelve months prior to the filing of the claim, whichever is less. These limitations apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory.
However, these monetary limitations will not apply to:
• Bromelkamp’s obligations under the Section titled “Defense of infringement and misappropriation claims";
• Bromelkamp's use of Customer's trademark(s) without express written consent to do so;
• liability for damages awarded by a court of final adjudication for Bromelkamp’s or its employees’ or agents’ gross negligence or willful misconduct;
• liabilities arising out of any breach by Bromelkamp of its obligations under the Section entitled “Confidentiality"; or
• liability for personal injury or death caused by Bromelkamp’s negligence or that of its employees or agents or for fraudulent misrepresentation.
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN AN AGREEMENT BETWEEN YOU AND BROMELKAMP, ALL SOFTWARE, SERVICES, COMMUNICATION SERVICES, TRAINING, THIRD-PARTY LINKS AND INFORMATION ON BROMELKAMP WEB SITE ARE PROVIDED "AS IS" WITHOUT ANY OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. BROMELKAMP MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS AND ACCURACY OF THE INFORMATION, SOFTWARE, SERVICES, TRAINING AND COMMUNICATION SERVICES CONTAINED ON BROMELKAMP WEB SITE. BROMELKAMP ASSUMES NO RESPONSIBILITY FOR ERRORS, INNACURACIES OR OMISSIONS IN ANY SOFTWARE, SERVICES, INFORMATION OTHER DOCUMENTS OR ANY OTHER MATERIALS THAT ARE REFERENCED BY OR LINKED TO THE BROMELKAMP WEB SITE.
EXCLUSION OF CERTAIN DAMAGES. IN NO EVENT SHALL BROMELKAMP BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE, NON-USE, PROVISION, PERFORMANCE OR FAILURE OF PERFORMANCE OF THE SERVICES, BROMELKAMP WEB SITE, TRAINING, COMMUNICATION SERVICES AND THIRD PARTY LINKS, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILTY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORSEEABLE.
The Licensee may not sublicense, assign, or transfer the Licensed Programs except as expressly provided in this Agreement. Any attempt to otherwise sublicense, assign, or transfer any of the rights, duties, or obligations hereunder is void.
This Agreement is deemed to be executed in Minneapolis Minnesota and will be governed by the laws of the State of Minnesota.
BY PAYMENT OF THE LICENSE FEES, THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. THE PARTIES FURTHER AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF AGREEMENT BETWEEN THE PARTIES WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.