PLEASE READ THIS AGREEMENT CAREFULLY BEFORE SIGNING THIS AGREEMENT OR USING THE REQSTUDIO SOFTWARE (“ReqStudio” or the “Software”).

 

This Agreement is a legal agreement between you (“LICENSEE”) and ART SOLUTIONS, INC

(“ART SOLUTIONS”) pursuant to which the Software is being licensed, not sold, to LICENSEE. The Software, which is known as ‘REQSTUDIO’, is the software and code that, when executed and/or used with the appropriate hardware and technology, allows multi-user management of any type of task, such as tasks, requests and correspondence. The Software may only be Used (as hereinafter defined) by LICENSEE or Users (as hereinafter defined) for the purposes of internal multi-user case management as limited by this Agreement. By installing or using the Software in any way, you agree to be bound by the terms and conditions of this Agreement. To be able to Use the Software, you, whether you are a LICENSEE or a User, must express your acceptance to be bound by the terms and conditions of this Agreement (the “Terms”) by signing or otherwise accepting this Agreement. If you, whether you are a LICENSEE or a User, do not agree to the Terms, you are not licensed to use the Software and thus you are not authorized to use the Software; therefore, you should not access or Use the Software and you are not licensed to use the Software; therefore, you should not sign this Agreement.

 

Notwithstanding anything to the contrary in this Agreement, acceptance of this Agreement before or without acceptance or signature of the paper/hard-copy form of this Agreement and/or without the provision, use, or acceptance of a Billing Document, still binds LICENSEE and all Users, if any, to: (a) this Agreement and (b) to pay to ART SOLUTIONS the appropriate and current Fee for LICENSEE in consideration of the Users.

 

It is LICENSEE’s responsibility to ensure each and every User is aware of and accepts this Agreement.

 

1. Definitions

 

1.1 Defined Terms

 

The following capitalized terms, as used in this Agreement, shall have the meanings set forth below:

 

• “Billing Document” means any documents, forms, or templates, in paper, digital, electronic, and/or any other means or media, which discloses to LICENSEE any fees (including any Fee) to be paid and/or the number of Users permitted to Use the Software (or Free Software, if appropriate), including pricing schedules, bills, and invoices. The number of Users, if any, disclosed in the Billing Document shall be absolute and correspond to the number of natural persons that may Use the Software (or Free Software, if appropriate). Neither LICENSEE nor User may transfer their license or right to Use the Software under this Agreement, except that LICENSEE may assign a new user if a User becomes ceased to be an employee of LICENSEELICENSEE. Said ex-employee may not use the Software.

 

• “Documentation” means explanatory written materials related to the Software, which may also be available as part of or accessible with the Software.

 

• “Effective Date” means the earliest date among the following: (1) the date LICENSEE signs or otherwise accepts this Agreement; or (2) the date when the Software is Used by LICENSEE or any User.

 

• “Fee” means the amount of money or other consideration as provided in a Billing Document and any other amount otherwise agreed by and between LICENSEE and ART SOLUTIONS for a license to the Software as provided in Section 2.1 or 2.4.

 

• “Free Software” means Business Software, but limited to 15 Users, up to 3 areas, and a 30 day trial of email alerts, reports print & export, case branching, case following, reopen closed cases, and report deeplinking. (“Software” includes the “Free Software” in terms of obligations and limitations of the LICENSEE and Users as provided in this Agreement.)

 

• “Non-Business” means the description of non-business concerns. For clarity, “Non-Business” shall be descriptive of not being related to an ongoing concern with either a business, professional, or corporate objective. Generally, this shall relate to personal and outside-of-business scenarios.

 

• “Non-Commercial” means the description of non-commercial concerns. For clarity, “Non-Commercial” shall be descriptive of not being the object of a business or contract or service in which the Software is offered or in which services particularly enabled by the Software are offered. Generally, this shall relate to outside-of-contract or outside-of-transaction (personal) scenarios.

 

• “Business Software” means the Software, but limited in functionality. The Business Software does not include a server side component. The Business Software shall have less functions and utilities than the Software and the Enterprise Software, as they may be altered or modified by ART SOLUTIONS (the term

“Software” includes “Business Software” in terms of obligations and limitations of the LICENSEE and Users as provided in this Agreement. For example, the last paragraph in Section 1.3 shall also be interpreted and read as if it read “Business Software” in every instance that the word “Software” appears.)

 

• “Enterprise Software” means the Software, but with on-premise support and additional functionality or abilities not found or accessible through the Business Software, as they may be disclosed by ART SOLUTIONS from time to time in its sole discretion (the term “Software” includes “Enterprise Software” in terms of obligations and limitations of the LICENSEE and Users as provided in this Agreement).

 

• “Programs” means the Software, the Business Software, the Enterprise Software, or the Free Software.

 

• “Use” or “User” means the ability to install, execute, run, and display the Software or any part or component thereof as provided by ART SOLUTIONS, whether in partial or complete functionality, whether on the client side, server side or software as a service (Saas) version of the Software.

 

• “Users” means the employees or independent contractors of LICENSEE authorized to Use the Software pursuant to the terms of this Agreement.

 

1.2 Additional Terms

 

Certain additional terms defined in various Sections of this Agreement are listed below with a reference to the Section in which each such term is defined:

 

Term	Section
Agreement	Preamble
ART SOLUTIONS	Preamble
LICENSEE	Preamble
Terms	Preamble
Software	Preamble and 1.3
Term	4
Update	6
Upgrade	6
Working Hours	7
Confidential Information	13
Representatives	13

 

1.3 Description of the Software

 

The Software refers to the current version of the ReqStudio application (or otherwise the version of the Software being delivered, provided, or furnished with this Agreement). Any improvement (including either an Update or Upgrade) to or new version by ART SOLUTIONS of the Software may require the acceptance by LICENSEE and all Users of a new Agreement for continued Use and functionality of the Software, whether partial or full. Any license granted in this Agreement does not include Upgrades, unless approved in writing by ART SOLUTIONS.

 

Subject to the terns and conditions of this Agreement, the Software may include a client side component, which installs and operates on computers or workstations or servers that will be used for regular operation and will virtually (or otherwise) connect to a server side component hosting the cases under management. The Software may also includes the server side component, which installs and operates on computers or workstations or servers which will host the cases under management and may also act as or include a client side component.  The Software may also be offered as a software as a service (Saas).

 

If the Software is provided in a server-client configuration, it is LICENSEE’s responsibility to provide and maintain a network, including any computers, workstations, and servers, which meet the standards necessary for the Software, and any of the Software’s components, to operate appropriately if such components are needed. In all instances, it is also LICENSEE’s responsibility to provide the necessary operating systems and the hardware and equipment’s and their corresponding software, such as scanners and software drivers, so that the Software may operate appropriately.

 

 

2. Grant of Rights

 

As provided in Sections 1.1(e), 1.1(h), and 1.1(i), the following general limitations to the Software also apply to the Business Software, the Enterprise Software, and/or the Free Software, as the case may be.

There shall be four distinct levels of Use of the Software. ART SOLUTIONS reserves all rights not granted in this Agreement.

First, the Software may be provided for purposes of demonstration of the Software’s capabilities and functionalities. ART SOLUTIONS reserves the right to remove, limit, block, and demand a cease of access or Use to any person, including LICENSEE and any User for Software provided for demonstration purposes at any time, and all other rights not granted herein. ART SOLUTIONS gives no warranties or representations and shall have no obligations of any kind for provision of the Software for demonstration purposes. LICENSEE grants

ART SOLUTIONS the right to access LICENSEE’s facilities to confirm un-installation and removal of Software, and LICENSEE and Users shall provide and return any media containing any Software to ART SOLUTIONS.

Second, the Software may be provided as disclosed and licensed in this Agreement in Section 2.1.

Third, the Software may be provided as the Business Software (or the Free Software) as provided in Sections 2.2 and 2.3.

Fourth, the Software may be provided as the Enterprise Software as provided in Section 2.4.

LICENSEE may have an installation of the server side of the Software in its server (as may be further detailed in a Billing Document) and client side part of the Software in particular computers and/or workstations (as may be further detailed in a Billing Document) as long as LICENSEE is licensed to receive the Software as provided in Section 2.1 of this Agreement. 

Any and all limitations described in Sections 2, 2.1, 2.2, 2.3, or 2.4 shall be considered to limit the scope of the licenses granted therein.

Users are limited to Use the Software at the computer or workstation designated for the Use of the Software. Software (or any part or component thereof) installed in any computer or workstation of LICENSEE shall not be removed and installed in any other computer of workstation without the written consent of ART SOLUTIONS.

As applicable to Sections 2.1 to 2.4, whenever LICENSEE has complied with the terms and conditions of this Agreement and the Billing Document (if applicable), ART SOLUTIONS shall provide to LICENSEE the Software as limited to the number of Users (if applicable) and with any other limitation disclosed in the Billing Document and this Agreement. Subject to this Agreement, the functionality of any part of the Software which is otherwise limited by ART SOLUTIONS shall only be available to LICENSEE after registration and payment of the appropriate Fee. 2.1 Software License

Subject to the proper acceptance of this Agreement and the corresponding Billing Document (selecting the Software) by LICENSEE and payment of the appropriate Fee, ART SOLUTIONS will grant to LICENSEE, during the Term of this Agreement, a nonexclusive, non-assignable, non-transferrable license to allow LICENSEE or Users, if any, to Use the Software for internal multi-user case management and with the functionality as set forth in the Billing Document (Appendix A), provided that each User is authorized by LICENSEE and ART SOLUTIONS. For a User to be authorized and licensed to Use the Software, both the LICENSEE and the User must accept this Agreement. LICENSEE shall be responsible to account for every User’s acceptance of this Agreement. Use of the Software as per the license granted herein shall be limited to running, executing, and displaying the Software in object code form and as limited and provided by ART SOLUTIONS or, using the Software as a software as a service (SaaS) as may be provided in the Billing Document (Appendix A).  Full access and functionality to any part of the Software is not licensed without registration and payment of the Fee for such specific part of functionality of the Software. No other rights, implied or implicit, are granted to LICENSEE. Use of the Software is subject to the terms and conditions of this Agreement. LICENSEE and authorized Users will not acquire any ownership right, claim or interest in the Software by virtue of this Agreement or LICENSEE and/or authorized Users’ use of the Software. Without limitation to the generality of the foregoing, limitation to functionality includes the limitation to the amount of Users allowed to Use the Software. For clarity, the functionality of connecting or enabling any additional number of client side installations to connect to the corresponding server side installation shall only be granted with the payment of the appropriate Fee as provided in a corresponding Billing Document and as set forth in Section 5.

The license to the Software, as granted in this Section 2.1, does not include a license or right to future versions of the Software or to Upgrades.

2.2 Business Software License

If the Software or the Enterprise Software are not chosen, but LICENSEE chooses the Business Software, then ART SOLUTIONS only grants to LICENSEE during the term provided in Section 4 of this Agreement a limited, nonexclusive, revocable, non-assignable, non-transferrable, license to allow LICENSEE to Use the Business Software for limited, internal multi-user case management and with the limited functionality as provided and controlled by ART SOLUTIONS from time to time in its sole discretion.  Use of the Business Software as per the license granted herein shall be limited to running, executing, and displaying the Business Software in object code form or, using the Software as a software as a service (SaaS) as may be provided in the Billing Document (Appendix A) and as limited and provided by ART SOLUTIONS.  No other rights, implied or implicit, are granted to LICENSEE. Use of the Business Software is subject to the terms and conditions of this Agreement. LICENSEE will not acquire any ownership right, claim or interest in the Software by virtue of this Agreement or LICENSEE’s use of the Business Software. 

The term of the license to the Business Software as provided in Section 4 shall only be renewed as provided in said Section 4.

The license to the Business Software, as granted in this Section 2.2, does not include a license or right to future versions of the Software or to Upgrades.

2.3 Free Software License

If the Software, the Enterprise Software, or the Business Software are not chosen, but LICENSEE chooses the Free Software, then ART SOLUTIONS only grants to LICENSEE a limited, nonexclusive, revocable, nonassignable, non-transferrable, license to allow LICENSEE to Use the Free Software for the limited, internal multi-user case management functionality as provided and controlled by ART SOLUTIONS. Use of the Free Software as per the license granted herein shall be limited to running, executing, and displaying the Free Software in object code form or, using the Software as a software as a service (SaaS) as may be provided in the Billing Document (Appendix A) and as limited as provided by ART SOLUTIONS from time to time in its sole discretion.  No other rights, implied or implicit, are granted to LICENSEE. Use of the Free Software is subject to the terms and conditions of this Agreement. LICENSEE will not acquire any ownership right, claim or interest in the Software by virtue of this Agreement or LICENSEE’s use of the Free Software. 

The license to the Free Software, as granted in this Section 2.3, does not include a license or right to future versions of the Software or to Upgrades.

2.4 Enterprise Software License

Subject to the proper acceptance of this Agreement and if so provided in the corresponding Billing Document (selecting the Enterprise Software) by LICENSEE and payment of the appropriate Fee, ART SOLUTIONS hereby grants to LICENSEE, during the term provided in the Billing Document, a limited, nonexclusive, non-assignable, non-transferrable license to allow LICENSEE to Use the Enterprise Software for limited, internal multi-user case management and with the limited functionality as provided and controlled by ART SOLUTIONS from time to time in its sole discretion. Use of the Software as per the license granted herein shall be limited to running, executing, and displaying the Enterprise Software in object code form and as limited and provided by ART SOLUTIONS from time to time in its sole discretion.   

Full access and functionality to any part of the Software is not licensed without registration and payment of the Fee for such specific part of functionality of the Software. No other rights, implied or implicit, are granted to LICENSEE. Use of the Software is subject to the terms and conditions of this Agreement. LICENSEE will not acquire any ownership right, claim or interest in the Software by virtue of this Agreement or LICENSEE and/or authorized Users’ use of the Software. 

The term of the license to the Enterprise Software as provided in the Billing Document shall only be renewed as provided in said Billing Document.

The license to the Enterprise Software, as granted in this Section 2.4, does not include a license or right to future versions of the Software or to Upgrades.

 

3. LICENSEE and Users’ Negative Covenants:

 

The Software and Documentation are protected by United States copyright laws and international treaties. LICENSEE and Users must treat the Software and Documentation like any other copyrighted material. LICENSEE and Users expressly agree that they may not:

 

• use the Software outside the scope of the license granted under Section 2 of this Agreement,

 

• copy the Software,

 

• modify or adapt the Software or merge it or part of it into another program,

 

• reverse engineer, disassemble, decompile or make any attempt to discover the source code of the Software,

 

• delete or modify Copyright notices and other proprietary rights and notices in the Software,

 

• place the Software onto a server so that it is accessible via a public network such as the Internet, or otherwise make the Software, or any part thereof, publicly accessible,

 

• give access to the Software to unauthorized Users or third parties,

 

• sublicense, rent, lease, lend or otherwise transfer, directly or indirectly, any portion of the Software to any third party,

 

• create derivative works of the Software, and/or

 

• publish, distribute or disseminate the Software via the Internet or other public computer based information system.

 

LICENSEE shall be responsible for ensuring compliance with the Terms by each of the Users as if every one of them executed this Agreement.

 

The language in this section will be understood to not expand and to limit the scope of any license granted in this Agreement.

 

4. License Term

 

This Agreement shall be effective as of the Effective Date and shall be in effect for the term specified in the Billing Document (the “Term”). Notwithstanding the foregoing, the Term of the license for the Business Software and the Free Software shall be one (1) month from the date on which this Agreement is accepted. After such Term expires, LICENSEE must renew the license in order to be eligible for technical support and Software Updates. The Term shall only be renewed if LICENSEE submits the information required by ART SOLUTIONS, pay the then applicable Fees and takes any other steps as may be required by ART SOLUTIONS in connection with the renewal of the license. ART SOLUTIONS is under no obligation to renew any license and makes no representations with regard to renewing licenses.

 

The Term of the Enterprise Software is provided in the Billing Document and shall only be renewed as provided in said Billing Document.

 

The Software or any part thereof may operate, at ART SOLUTIONS’s sole discretion, pursuant to a product authorization code which, when applied, will allow the Software or any part thereof to operate for its designated purpose, or until ART SOLUTIONS terminates this Agreement because of LICENSEE’s failure to comply with any of its Terms. For example, a product authorization code may provide for a certain number of Users or a certain number of client side installations of the Software to connect to the server side installation of the Software.

 

5. Fees

 

As consideration to obtain access to or Use any limited functionality of any part of the Software or the Enterprise Software, as provided in Sections 2.1 or 2.4, respectively, LICENSEE agrees to pay ART SOLUTIONS the appropriate Fee for such specific functionality or part of the Software. 

 

Fees may be automatically collected, if both parties desire, through credit cards or other mechanisms, as they may be provided in the Billing Document (Appendix A). Any party may withdraw their acceptance to automatic payments at any time.

 

If LICENSEE pays any deposit for the license of the Software, in the event LICENSEE cancels the installation of the Software, the amount of said deposit shall be refunded to LICENSEE after deducting from said deposit the time invested by ART SOLUTIONS in connection with said installation at ART SOLUTIONS’s then current hourly rates plus all expenses incurred in connection therewith. LICENSEE may cancel the installation of the Software only before completion of the installation. The installation of the Software shall be deemed completed if ART SOLUTIONS does not have to take any action in order for LICENSEE (and/or at least one User, if any) to Use the Software.

 

6. Modifications and Enhancements

 

For purposes of this Agreement, an “Update” shall mean one or more fixes, repairs, or standardizations, or other minor changes to the Software, whereas an “Upgrade” shall mean a new release or version of the Software, or the addition to the Software of a new functionality, or the change of a functionality, or a major change to the Software. The definition of Software does not include Upgrades. The licenses granted in Section 2 do not include Upgrades or the right to Upgrades. The actual delivery of furnishing of any Update or Upgrade to which LICENSEE (or User, if applicable) does not have a right to under this Agreement shall not be interpreted as a grant of any right  to LICENSEE (or User, if applicable).

 

LICENSEE agrees that ART SOLUTIONS may modify the Software, this Agreement and/or the Billing Document if necessary to comply with any other agreements that ART SOLUTIONS is currently bound by or will be bound by in the future, and/or with applicable law, as well as to adjust to changing business circumstances. LICENSEE’s continued use of the Software shall constitute its acceptance of this Agreement and the Billing Document with the given modifications. If LICENSEE does not agree to any of such changes, it may terminate this Agreement and immediately cease all access to and Use of the Software, or the certain parts or products of the Software involved in the modifications, with a corresponding reduction in fees associated with such parts of the Software as agreed to by ART SOLUTIONS. ART SOLUTIONS may use any reasonable medium, including email or any other electronic medium, to notify any changes or modifications pursuant to this paragraph.

 

ART SOLUTIONS may, but will not have the obligation to, as part of or through the Software or virtually and/or remotely, automatically or at command, through digital or electronic means and through the internet or through any other network or method of communication, either: (1) connect from ART SOLUTIONS’s computers to LICENSEE’s servers and/or clients (computers or workstations) and to the Software as installed on your server and/or clients (computers or workstations) or (2) have LICENSEE’s server and/or clients (computers or workstations) with Software installed to automatically or at remote request send information to ART SOLUTIONS’s computers. The purpose of the foregoing connections may be to either: (1) Update or Upgrade the Software; (2) verify and account for the proper use of the Software and compliance of this Agreement; (3) change the level of Use from the Software to the Free Software; (4) change the level of Use from Free Software to the Business Software; and/or (5) provide support.

 

At ART SOLUTIONS’s sole discretion, LICENSEE shall have the obligation to install, if directed by ART SOLUTIONS, any Update provided by ART SOLUTIONS.

 

7. Technical Support

 

This Section 7 shall only inure to the benefit of LICENSEE to the Software and the Enterprise Software, as respectively provided in Section 2.1 and 2.4.

 

ART SOLUTIONS will make reasonable efforts, either by telephone or Internet, to help LICENSEE solve specific problems in connection with the Use or management of the Software and/or the Enterprise Software.  It may not be possible to solve all problems or correct all errors in the Software.  During ongoing Software development or maintenance, ART SOLUTIONS may add, modify or delete functionality in the Software and/or the Enterprise Software, new releases, Updates, or Upgrades.   

 

Generally, there shall be no technical support outside of Working Hours. Technical support is not guaranteed to be available during Working Hours. For purposes of this Agreement, “Working Hours” are from 9:00 AM until 6:00 PM Atlantic time (time in Puerto Rico), Monday through Friday, except on holidays, including both federal and local holidays. Technical support does not cover questions about design standards, development methods, basic operations and other general topics that are intended to be covered by attending training classes or reading the Documentation. 

The Software may provide links to other World Wide Web sites or resources. You acknowledge and agree that ART SOLUTIONS is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. LICENSEE further acknowledges and agrees that ART SOLUTIONS shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource. 

8. Intellectual Property Rights

 

ART SOLUTIONS owns all right, title and interest in and to the Software (or is otherwise duly licensed to subscribe to this Agreement), including, but not limited to, the entire exclusive copyright and all other intellectual property rights, all rights of commercialization, rental or sale of the Software or any part thereof, all rights to make derivative works of the Software, and all rights to distribute the Software and copies thereof. This Agreement does not convey any proprietary rights or other interest in the Software nor any trademarks and service marks related thereto to ART SOLUTIONS. By executing this Agreement and paying the applicable Fee to ART SOLUTIONS LICENSEE obtains the limited license for authorized Users to Use the Software as set forth in Section 2 of this Agreement. Any other use of the Software by any person, business, corporation, government, organization or any other entity is strictly prohibited and is a material violation of this Agreement.

 

9. Termination

 

ART SOLUTIONS shall have the right to immediately terminate this Agreement for: (a) LICNESEE and/or any of the Users breach of any clause, term, condition, or scope of the applicable license in this Agreement and/or (b) if LICENSEE and/or the User fail to perform any obligation required under this Agreement and/or the Billing Document or becomes bankrupt or insolvent.  Sections 1, 3, 8, 10, 11, 12, 13, 14, 15 and 16 shall survive the expiration or earlier termination of this Agreement.

 

10. WARRANTY

 

THE SOFTWARE PROVIDED UNDER THIS AGREEMENT IS PROVIDED ON AN “AS IS” BASIS. LICENSEE AGREES THAT THE SOFTWARE IS PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHERMORE, ART SOLUTIONS DOES NOT MAKE ANY WARRANTIES OF ANY KIND WITH RESPECT TO LOSS OR CORRUPTION OF DATA, LOSS OR DAMAGE TO EQUIPMENT AND/OR SOFTWARE, SYSTEM RESPONSE TIMES, TELECOMOMUNICATION LINES OR OTHER COMMUNICATION DEVICES, QUALITY, AVAILIABITY, RELIABILITY, SECURITY ACCESS DELAYS OR ACCESS INTERRUPTIONS, NOR COMPUTER VIRUSES, BUGS OR ERRORS. ART SOLUTIONS DOES NOT MAKE ANY WARRANTIES THAT THE SOFTWARE WILL NOT BE INTERRUPTED OR ERROR FREE OR AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE AND ART SOLUTIONS ASSUMES NO RESPONSITIBLITY. ART SOLUTIONS, ITS AFFILIATES, AND THEIR RESPECTIVE REPRESENTATIVES ARE NOT LIABLE, AND EXPRESSLY DISCLAIM ANY LIABILITY FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM LICENSEE OR STORED BY LICENSEE VIA THE SOFTWARE PROVIDED BY ART SOLUTIONS. NO ORAL ADVICE OR WRITTEN

INFORMATION GIVEN BY ART SOLUTIONS’S REPRESENTATIVES WILL CREATE A WARRANTY; NOR MAY THE LICENSEE RELY ON ANY SUCH INFORMATION OR ADVICE.  

Paying for LICENSEE’s, User’s, or any third parties internet access is not ART SOLUTIONS’s responsibility. Any charges and fees by internet service providers is LICENSEE’s and/or User’s sole responsibility. ART SOLUTIONS does not warrant the availability, quality, service, operability, or any other aspect of the internet connectivity and service provided by any internet service providers.

 

11. Infringement

 

If ART SOLUTIONS receives notice of an intellectual property infringement claim or otherwise concludes that the Software may infringe the proprietary rights of a third party, LICENSEE will allow ART SOLUTIONS, to (i) procure the right for LICENSEE to continue using the Software, (ii) modify or replace the Software to make them non-infringing, without adversely affecting their operating specifications, or (iii) if ART SOLUTIONS determines that neither (i) nor (ii) is practicable, terminate LICENSEE’s license (and thus authorized User’s right) to use the infringing Software and accept its return against payment of the unaccrued portion, if any, of the then current applicable Fee, if any.

ART SOLUTIONS will have no obligation to LICENSEE under this Section 11 if the patent, copyright or trade secret infringement claim is based on (i) a modification of the Software not made or authorized by ART SOLUTIONS, (ii) the combination of the Software with an item not supplied by ART SOLUTIONS, or (iii) use of the Software in a manner not intended by the Documentation.

THE RIGHTS GRANTED TO THE LICENSEE UNDER THIS SECTION 11 WILL BE THE LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED AND/OR ACTUAL INFRINGEMENT BY ART SOLUTIONS HEREUNDER OF ANY INTELLECUTAL PROPERTY RIGHTS, INCLUDING WITHOUT LIMITATION ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT, OR FOR ANY BREACH OF THE WARRANTY GIVEN IN SECTION 10.

 

 

12. LIMITATION OF LIABILITY AND INDEMNITY

IN ADDITION TO ANY OTHER LIMITATION OF LIABILITY PROVIDED IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY ANY LEGAL REQUIREMENT, ART SOLUTIONS, ITS AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,

SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSSES, INCLUDING, BUT

NOT LIMITED TO, LOSS OF PROFITS OR ANTICIPATED PROFITS, ROYALTIES, LOST DATA, COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE, EQUIPMENT OR SOFTWARES, OR ANY OTHER BUSINESS OR OTHER ECONOMIC LOSS ARISING FROM OR RELATED TO: (1) THE SOFTWARE, (2) THIS AGREEMENT OR ITS PERFORMANCE OR BREACH, (3) ANY EQUIPMENT OR SOFTWARE NOT

PROVIDED BY ART SOLUTIONS, (4) ANY SOFTWARE, INCIDENTAL OR OTHERWISE, PROVIDED BY THIRD PARTIES AND (5) ANY THIRD PARTY CLAIM: (I) WHETHER FOR, AMONG OTHER THINGS,

LICENSEE’S AND/OR USER’S NEGLIGENCE OR MISCONDUCT, BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM; (II) WHETHER LIABILITY IS ASSERTED IN, AMONG OTHER THINGS, CONTRACT OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT PRODUCT LIABILITY); (III) WHETHER OR NOT FORESEEABLE; AND (IV) WHETHER OR NOT ART SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.

IN NO EVENT WILL ART SOLUTIONS’S TOTAL LIABILITY TO LICENSEE IN ANY ACTION, WHETHER IN CONTRACT OR TORT, EXCEED THE AMOUNT OF THE THEN CURRENT FEE, IF ANY. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY LIMITED REMEDY PROVIDED HEREIN. LICENSEE HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL ITS ESSENTIAL PURPOSE. 

The foregoing sets forth LICENSEE’s exclusive remedy for breach of this Agreement by ART SOLUTIONS. The provisions of this section allocate the risks between ART SOLUTIONS and LICENSEE and ART SOLUTIONS’s pricing reflects the allocation of risk and limitation of liability specified herein.

LICENSEE hereby agrees to indemnify, defend, protect and hold harmless ART SOLUTIONS, its affiliates and their respective Representatives (as hereinafter defined), suppliers, sub-contractors and permitted assigns, successors in interest, (collectively the “ART SOLUTIONS Indemnitee”) from and against any losses incurred or suffered by, or asserted against, such ART SOLUTIONS Indemnitee directly or indirectly in relation to or arising from: (a) any breach of this Agreement by LICENSEE; (b) any claim brought by any third party against a ART SOLUTIONS Indemnitee based on LICENSEE’s use of the Software; (c) ART SOLUTIONS’S compliance with LICENSEE’s specifications or instructions; (d) the use of the Internet or the placement or transmission of any materials on the Internet by LICENSEE or authorized Users; (e) claims for infringement of any third party intellectual property rights, arising from the use of any services, software, or systems not provided by ART SOLUTIONS; (f) any inaccurate statement or representation made by LICENSEE in and/or in connection with this Agreement; (g) ART SOLUTIONS’S use of intellectual property or data supplied by LICENSEE; and (h) acts or omissions of LICENSEE and/or any authorized User in connection with the installation, maintenance, presence, use or removal of equipment or software or service not provided by ART SOLUTIONS, as well as for damage to, or loss of use of property of third parties and/or injury or death of any person to the extent that such damage, injury or death is caused by the negligent act or omission of LICENSEE and/or authorized User in connection with LICENSEE and/or authorized User’s performance under this Agreement.

13. Confidentiality

LICENSEE acknowledges that confidential and proprietary information (“Confidential Information”) of ART SOLUTIONS is contained and forms part of the Software and the Documentation. As such, ART SOLUTIONS may be willing to share such Confidential Information provided that the Confidential Information is protected. For purposes of this Agreement, Confidential Information will mean all confidential or proprietary data, information, know how and documentation not generally known to the public and any and all tangible embodiments thereof, including but not limited to, that which relates to finances, agreements, intellectual property, products, services, technology, software, systems, suppliers, clients marketing, engineering, research, operations, pricing, licenses and copies or portions thereof, whether or not disclosed or designated as proprietary, confidential or otherwise.

LICENSEE agrees to protect and hold and to cause all authorized Users to protect and hold all Confidential

Information in strict confidence and to take all reasonable steps necessary to protect the Confidential Information from unauthorized and/or inadvertent disclosure. Unless in receipt of specific written exemption from ART SOLUTIONS, LICENSEE and authorized Users will not: (a) use any of the Confidential Information for any purpose other than to perform its obligations under this Agreement for which the Confidential Information is being disclosed; (b) disclose any of the Confidential Information other than to its employees, officers, directors, consultants, or agents (collectively “Representatives”) who have a reasonable need-toknow to perform their duties under this Agreement, and only to do so when the Representatives have agreed to be bound by the confidentiality provisions of this Agreement; (c) reproduce the Confidential Information for any purpose unless it is necessary to perform its obligations hereunder; nor (d) remove any proprietary right legends from the Confidential Information.

In the event of any court order or legal action requiring LICENSEE to disclose Confidential Information, LICENSEE agrees to give immediate verbal and written notification of the order or action to ART SOLUTIONS, and to the extent allowable under the law and at the expense of ART SOLUTIONS, hold the Confidential Information while ART SOLUTIONS seeks a protective order. Upon the request of ART SOLUTIONS, LICENSEE will promptly return or destroy all Confidential Information belonging to ART SOLUTIONS, including all copies thereof. Furthermore, LICENSEE agrees and acknowledges that any violation of its obligation of confidentiality herein will result in irreparable injury to ART SOLUTIONS and that, in addition to any other remedies that may be available, in law, at equity or otherwise, ART SOLUTIONS will be entitled to seek injunctive relief against the threatened breach of this obligation, or the continuation of any such breach, without the necessity of proving actual damages or posting a bond or any other security.

LICENSEE agrees that if will not export, re-export, divert, transfer, or disclose, directly or indirectly, the Software or any related technical information, documents, or materials, or any direct product thereof, from the country of delivery or to any person who is not a national or resident thereof, without the prior written approval of ART SOLUTIONS and obtaining any required re-exportation license from the United States government. The obligations of this Section will survive termination of this Agreement.

 

14. Attorney Fees

 

If any legal action is necessary to enforce this any provision of this Agreement, ART SOLUTIONS shall be entitled to reasonable attorney fees, costs and expenses in addition to any other relief to which it may be entitled.

 

15. Tax Matters

 

The contracting parties expressly agree that for tax and any other purposes the transfer of title to and beneficial ownership of the rights granted to LICENSEE under this license will occur within the Commonwealth of Puerto Rico. 

 

16. General Provisions

 

• Complete Agreement: This Agreement together with all schedules or other attachments, including, but not limited to, Appendix A, Billing Document, which are incorporated herein by reference, is the sole and entire Agreement between the parties. In the event of any contradiction and/or inconsistency between this Agreement and Appendix A, the terms of Appendix A shall prevail over the terms of this Agreement. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter, whether in verbal or written form. The parties represent that they have read and understand the entire content of this Agreement, and they hereby accept it, acknowledging that the same has been drafted to their full satisfaction, and that it properly reflects their agreements and understandings.  

 

• Applicable Law: This Agreement will be exclusively governed by, and construed in accordance with the laws of the Commonwealth of Puerto Rico, without regard to its conflict of law provisions. Also, the contracting parties expressly agree that the Puerto Rico courts or the U.S. District Court for the District of Puerto Rico shall be the exclusive courts of competent jurisdiction which may decide over judicial controversies that the parties may have among them regarding the terms and conditions of this Agreement.  The parties agree to use their best efforts to mutually resolve any dispute arising under this Agreement.

 

• Assignment: The rights conferred by this Agreement shall not be assignable by the LICENSEE without ART SOLUTIONS’s prior written consent. ART SOLUTIONS may impose a reasonable license fee on any such assignment.

 

• Severability: The parties hereto intend all provisions of the Agreement to be enforced to the fullest extent permitted by law. Accordingly, should a court of competent jurisdiction determine that the scope of any provisions is too broad to be enforced as written, the parties intend that the court should reform the provision to such narrower scope as it determines to be enforceable. If any provision of this Agreement shall be held illegal, invalid or unenforceable under present or future law by a court of competent jurisdiction, such provision shall be severed from this Agreement and shall not affect the validity of this Agreement as a whole or any of its provisions.
• Headings: Section headings in this Agreement are included herein for convenience or reference only and shall not constitute a part of this Agreement.

 

• No Waiver of Rights: If either party fails to give notice or enforce any right under this Agreement, such failure will not constitute a waiver of such right, unless such waiver is reduced to writing and signed by the waiving party. If a party waives its right in writing, such waiver will not constitute a waiver of any other right or of any subsequent violation of the same right that has been waived. The parties to this Agreement will be excused for failures or delays in performing an obligation under this Agreement if such failure or delay is caused by force majeure, including, but not limited to, fortuitous event and acts of God; wars, riots and insurrections; laws, decrees, ordinances and governmental regulations; strikes and lockouts; transportation stoppages or slowdowns; floods, fires and explosions; or the inability to obtain necessary export or import licenses or permits.
• Notices: Every notice according to this Agreement will be in written form and will be sent by mail to the addresses first mentioned above. Any party can, from time to time, assign a new address through written notification to the other party. 
• Time Limitation on Actions: No party may commence an action under this Agreement more than one (1) year after the occurrence of an event of default, or in the event such default is not discoverable by the injured party when it has occurred, more than one (1) year after such default could, and in the exercise of due diligence, would have been discovered.