SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT IS MADE BETWEEN YOU (“LICENSEE”) AND DUCEN INFOTEK LLC, 17708 BONIELLO DRIVE, BOCA RATON, FL
33496, USA (“DUCEN”) AND ITS CORRESPONDING SCHEDULE GOVERN YOUR INSTALLATION AND USE OF ANALANCE. PLEASE
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE, AND/OR BEFORE
DOWNLOADING OR INSTALLING THE SOFTWARE, AND INDICATE YOUR ACCEPTANCE BY CHOOSING “I ACCEPT”. BY CHOOSING “I
ACCEPT”, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY ALL THE TERMS OF THIS LICENSE AGREEMENT. THE DATE YOU
ACCEPT THIS LICENSE AGREEMENT BY CHOOSING “I ACCEPT” SHALL BE THE “EFFECTIVE DATE” OF THIS AGREEMENT.
- DUCEN has developed and/or obtained rights in the software namely, the AnalanceTM suite of products,
more particularly set out in the Schedule hereinafter collectively referred to as Software;
- the said Software can be used as set out in the Schedule to this Agreement;
- LICENSEE desires to use the said Software and the services of DUCEN for the sole purposes as set out
- the LICENSEE is downloading or using the Software free of charge for evaluation purposes only and/or
for commercial use based on the licensing terms agreed by both DUCEN and LICENSEE.
- the agreement applies whether the software is used on LICENSEE location as specified in the Schedule,
any third-party cloud provider infrastructure or DUCEN provided Analance Cloud.
- the LICENSEE has placed an order for the license of the Software as outlined in the Schedule which shall
form part and parcel of this Agreement;
- DUCEN desires to grant the LICENSEE and the LICENSEE desires to obtain from the DUCEN, a
nonexclusive, nontransferable license to use the Software and Software Documentation for internal
purposes upon the terms and conditions contained in this Agreement.
IT IS HEREBY AGREED as follows:
In this Agreement, unless otherwise expressly provided for, the following expressions shall have the following
- “Agreement” shall mean this Software License Agreement;
- “Schedule” shall mean a collective agreement that defines the software license and other terms, as applicable,
created between the LICENSEE and DUCEN, attached separately;
- “Equipment” shall mean the hardware and/or systems software configuration (e.g., the computer, computer
platform, operating systems and/or data base management system) specified in the Schedule, or, in the absence
of any such specification in the Schedule, the hardware and/or systems software configuration on which DUCEN
generally supports use of the Software;
- “Delivery Date” shall mean the date on which DUCEN shall deliver the Software Materials at the LOCATION
specified in the Schedule;
- “Licensed Purposes” shall mean the purposes for which the license has been granted which is set out more
particularly in the Schedule;
- “Location” shall mean the LICENSEE’s building/location where the Software is to be delivered and where the
LICENSEE is given license for use as specified the Schedule;
- “Media” shall mean the Media on which the Software and the Software Documentation, as provided to the
LICENSEE by DUCEN, is recorded or printed;
- “New Release” shall mean a commercially available modification or improvement that significantly changes the
Software by modifying or adding functions to the Software;
- “Parties” shall mean DUCEN and the LICENSEE (each, a “Party”);
- “Proprietary Information” shall mean any information contained or embodied in the Software, Software
Materials, Software Documentation or otherwise disclosed or made available to the LICENSEE by or on behalf
of DUCEN pursuant to or in connection with this Agreement and whether or not such information is expressly
stated to be confidential or marked as such;
- “Software” shall mean the computer programs, Analance Suite of Products, in machine-readable executable
code only as specified in the Schedule for which DUCEN has expressly granted license to the LICENSEE for use
The software may contain materials prepared or developed by other third party developers called Independent
Software Vendors (ISVs) or Original Equipment Manufacturers (OEMs) as set out in the Schedule;
- “Software Documentation” shall mean user manual and all other related materials in eye-readable form written
in English as supplied to the LICENSEE by DUCEN for aiding the use and application of the Software only as
specified in the Schedule;
- “Software Materials” shall mean the Software, the Software Documentation and the Media. The software
material may contain materials prepared or developed by other third party developers called Independent
Software Vendors (ISVs) or Original Equipment Manufacturers (OEMs);
- “Use the Software Materials” shall mean to use the Software, and to read and possess the Software
Documentation in conjunction with the use of the Software and to possess the Media;
- “Update” shall mean a subsequent release of the Software that DUCEN makes generally available for the
Software Maintenance and Support services for which the parties hereto have entered into a separate Annual
Software Maintenance and Support services agreement. Updates shall not include any release, future product,
or any upgrade in features, functionality or performance of the Software which DUCEN licenses separately or
offers only for an additional fee;
- “Intellectual Property” shall mean any and all rights in patents, patent applications, copyrights, copyright
registrations, trade secrets, trademarks and service marks (including, where applicable, all derivative works of
- “Confidential Information” shall mean non-public information of a business partner, affiliate or a party to this
Agreement that is identified as or would be reasonably understood to be confidential and/or proprietary.
Confidential Information of DUCEN includes, without limitation, the Software Documentation, all the Software
provided under Software and all algorithms, methods, techniques, code (Source Code and Object Code) and
processes revealed or utilized therein. Confidential Information does not include information that: (i) is or
becomes known to the public without fault or breach of the Recipient; (ii) the Discloser regularly discloses to
third parties without restriction on disclosure; (iii) the Recipient obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation; or (iv) is independently developed by the
Recipient without access to Confidential Information;
- “Recipient” shall mean the party receiving Confidential Information hereunder;
- “Discloser” shall mean the party providing Confidential Information hereunder;
- “Source Code” shall mean computer programs written in higher-level programming languages and readable by
- “Third Party Licensor” shall mean a third party whose software products (“Third Party Products”) have been
made available to DUCEN for distribution and licensing under the terms of its agreement with DUCEN;
- “User Restriction” shall mean any Software component User Restriction identified in the Schedule (for example,
and without limitation, number of named users);
- ”User License” shall mean a legal contract between DUCEN and the end user of an application. User License
details how the Software can and cannot be used and any User Restrictions that DUCEN imposes;
- “Named User Licenses” shall mean the user license to the stated maximum number of individual named users
as set out in the Schedule, to end user who have user access to the Software Material(s) irrespective as to
whether any such user is actively logged on to the Software Material(s) at a given point in time;
- “Material Defect” shall mean a material deviation between the then-current, general release version of the
Software Material and its Software Documentation, for which defect, the LICENSEE has given DUCEN enough
information for DUCEN to replicate the deviation on a computer configuration.
2. GRANT OF SOFTWARE LICENSE
2.1 EVALUATION LICENSES
If LICENSEE is downloading the Software for the first time, solely for purposes of considering the purchase of a
subscription to the Software, using the Software through the Free Trial section of the DUCEN website, or if a Schedule
specifies that an evaluation license is being granted thereunder, DUCEN hereby grants to LICENSEE, and LICENSEE
accepts, a non transferable, non exclusive, limited right to use the Software and the Software Material only in the
Location and solely on or in conjunction with the Equipment specified (as set out in the Schedule) and to be accessed
only by the named User License as set out in the Schedule and solely for the purposes as set out in the Schedule.
The evaluation period is limited to a maximum of 30 days, unless DUCEN has extended such period at its sole
discretion or unless a different period is stated in the applicable Schedule.
If LICENSEE wishes to purchase a license, contact DUCEN at firstname.lastname@example.org or via analance.ducenit.com
2.2 LICENSE TO USE
DUCEN hereby grants LICENSEE a non transferable, non exclusive, annual and (or) perpetual license to use the
Software and the Software Material only in the Location and solely on or in conjunction with the Equipment (as set
out in the Schedule) and to be accessed only by the named User License as set out in the Schedule and solely for the
purposes as set out in the Schedule.
2.3 RESTRICTION ON MAKING COPIES
DUCEN does not authorize the LICENSEE with authority to make copy, distribute and/or install the Software Material
other than as specified in the Schedule.
2.4 SOURCE CODE
Unless otherwise explicitly provided in the Schedule, the LICENSEE has no license to access or use or any other rights
in or to, the Source Code for a particular component system. If the Schedule grants LICENSEE a license to use Source
Code for a particular component, then the LICENSEE has the limited right to use such Source Code to modify such
Component System for its own, internal computing operations. Subject to the foregoing, the LICENSEE will not
disclose all or any part of the Source Code for a Component System to any person except the LICENSEE employees
who, before obtaining access to the Source Code, have been informed by the LICENSEE in writing of the nondisclosure obligations imposed on both the LICENSEE and such LICENSEE’s Employees under this agreement. DUCEN
will own all right, title and interest to al derivative works of the component system (“Derivative Works”), even if
solely created by the LICENSEE pursuant to a license to use Source Code hereunder. The LICENSEE hereby assigns
to DUCEN absolutely all of its rights, title and interest in and to any Derivative Works created by the LICENSEE
together with all intellectual property rights therein. DUCEN grants the LICENSEE (if licensed to use the Source Code
hereunder) a perpetual (unless otherwise specified in the Schedule), non-exclusive, non-transferable license
(without the right to sublease or sublicense) to use and copy for use the Derivative Works created by the LICENSEE
or created by DUCEN at the LICENSEE’s request and payment, for the LICENSEE’s own, internal computing
operations. Upon DUCEN’s request the LICENSEE will provide DUCEN with a copy (including all documentation
related thereto) of all Derivative Works created by the LICENSEE and will execute and deliver to DUCEN any
documents reasonably necessary to vest in DUCEN all right, title and interest therein.
3. PRICE AND PAYMENT
3.1 LICENSE FEE:
The fee for the license to be granted to LICENSEE by DUCEN under this Agreement (the “License Fee”), including
the terms of payment, are more particularly set out in the Schedule.
Notwithstanding what is stated in the Schedule, the License Fee, including the taxes, others charges and all
other sums payable in connection with this agreement, are to be paid by immediately upon execution of this
3.2 TAXES AND OTHER CHARGES:
The License Fee and any other charges, including the following payable under this Agreement, are independent
charges, and unless otherwise specified, and are to be paid by the LICENSEE to DUCEN on demand:
- any packing, delivery or transportation charges incurred in connection with this agreement, including
delivery of the Software at the Location;
- any applicable tax, including sales tax, duty, tariff, service tax or any other duties including related
interest or penalty, which may be charged or chargeable on any goods or services or Software Material
provided to the LICENSEE hereunder or in connection with this Agreement;
- any additional tax, levy or duty due to change in the government policy or for any other reason
3.3 Any sum payable under this Agreement is not paid within [15 days] after the due date, then (without prejudice
to DUCEN’s other rights and remedies) DUCEN reserves the right to charge interest at 1.5% per month on such
unpaid from the due date to the date of payment inclusive;
3.4 The LICENSEE shall not be entitled to withhold payment of any sum by reason of any right of set-off or any claim
or dispute with DUCEN, whether relating to the quality or performance of the Software Materials or otherwise.
3.5 DUCEN shall have the right to suspend delivery or any further services in connection with this Agreement or
related agreement where it reasonably believes that the LICENSEE will not make payment in accordance with
this Clause 3.
4.1 DUCEN shall use all reasonable endeavors to deliver to the LICENSEE within the time frame specified in the
Schedule at the Location.
4.2 DUCEN shall not be liable for any delay caused by events beyond its reasonable control (which events are set
out in the Force Majeure Clause below) and in such case DUCEN shall be entitled to a reasonable extension of
time to perform its obligations pursuant to this Clause.
4.3 DUCEN shall not be responsible for complying with statutory regulations, local bye-laws, or the fulfillment of
any specific regulations affecting the LICENSEE in connection with this agreement.
5. RESTRICTION ON USE
5.1 The LICENSEE shall use the Software Material only for the Licensed Purposes and for no other purposes.
5.2 The LICENSEE shall use the Software Material at the Location and on the equipment as specified in the Schedule.
5.3 The LICENSEE shall not permit any other person other than the persons set out under named User Licenses (as
set out in the Schedule) to access the Software Material and solely for the purposes set out in the Schedule.
5.4 The LICENSEE shall not permit any third party other than DUCEN to use the Software Materials, nor shall the
LICENSEE use the Software Materials on behalf of or for the benefit of any third party other than DUCEN in any
5.5 The LICENSEE acknowledges and agrees that international export control laws and other applicable export and
import laws govern its use of the Software Material and the LICENSEE will neither export nor re-export, directly
or indirectly, the Software Materials, nor any direct product thereof. The LICENSEE acknowledges that a special
security program or code (“Key”) may be required to operate the Software. Any such key may prevent the
Software from operating (i) on any configuration other than the equipment or (ii) for more than the maximum
number of users specified in the Schedule.
5.6 The license granted under this Agreement to LICENSEE shall not be deemed to extend to any programs or
materials of DUCEN other than the Software Materials unless expressly agreed to in writing by DUCEN in the
5.7 The LICENSEE shall not make or allow copies of any or all of the Software Materials to be made.
5.8 During the continuance of this Agreement, the LICENSEE shall:
- effect and maintain adequate security measures to safeguard the Software;
- protect Software Materials from access or unauthorized use by any unauthorized body or person;
- retain the Software Materials under its exclusive control.
6.1 Subject to the limitations set forth in this Agreement, DUCEN warrants that, for a period of sixty (60) days
(“Warranty Period”) after the date of delivery, the Media on which the Software is delivered will be free from
material defects in material and workmanship. DUCEN sole obligation with respect to a breach of either of the
foregoing warranties shall be to repair or replace that part of the Software or Media giving rise to the breach of
warranty. The Software is not warranted to be free from error, or to operate uninterruptedly and/or that all
software defects can or will be corrected.
6.2 LIMITED WARRANTY
The limited warranty set forth herein constitutes the only warranty with respect to the software and is in lieu
of all other warranties written or oral, statutory, express or implied, including, without limitation thereto, the
warranties of merchantability and fitness for a particular purpose. DUCEN shall not be liable for any incidental
or consequential damages of any nature or for any reason either before or after installation of the software.
6.3 While DUCEN has endeavored to use reasonable care in compiling the systems and information incorporated in
the Software Materials, DUCEN can accept no liability of any kind whatsoever for the accuracy, completeness
and information/data generated by such systems or the Software Materials.
6.4 The LICENSEE acknowledges that the Software Materials have not been produced to meet the individual
requirements of the LICENSEE and cannot be tested in every possible combination. DUCEN does not warrant
that the facilities and functions comprised in the Software will meet all of the LICENSEE’s requirements.
6.5 DUCEN shall have no obligation to repair or replace the Software Materials under any circumstances except as
expressly provided in this Agreement.
6.6 WARRANTY CONDITIONS
DUCEN’s obligation to remedy a claimed breach of warranty shall be conditioned upon the following:
- the receipt by DUCEN during the Warranty Period, of a written notice from LICENSEE stating with
reasonable particularity the claimed Software failure;
- that the Software shall not have been altered or repaired by any party other than DUCEN;
- that the Software failures shall not be the result of the use of software not supplied and installed by
DUCEN or as the result of the improper use, mishandling, abuse, misuse, improper installation,
improper maintenance, or improper operation of the Software;
- that Software shall not have been damaged by any other cause whatsoever not attributed to DUCEN.
7. MAINTENANCE AND SUPPORT
DUCEN agrees to provide support for the use of the Software Material and to maintain the Software beyond the
warranty period only if the LICENSEE enters into a separate Software Maintenance and Support Plan Agreement
with DUCEN on terms to be agreed to between both of the Parties.
8.1 The LICENSEE shall enter into a separate Services Agreement so as to enable DUCEN to customize/configure the
software for use by the LICENSEE. The modification of the Software Materials shall be at the cost of and the
responsibility of the LICENSEE and to the extent necessary for the effective use of the Software Material by the
8.2 The LICENSEE shall not either by itself or through third parties make any modifications, amendments or
alterations to any or all the Software Material and the same would amount to infringement of the intellectual
property rights of DUCEN.
9. PROPRIETARY RIGHTS
9.1 The Software Materials and all copyrights, database rights, patents, trade secrets, trademarks and other
proprietary or intellectual property rights whatsoever, howsoever and wheresoever arising in the Software
Materials and in all other written or oral information provided by DUCEN for the purposes of this Agreement,
including the specific design, structure, and logic of individual programs of the Software, their interactions with
the LICENSEE’S database(s) and web servers, both internal and external, and the programming techniques
employed therein, are and shall remain the exclusive property of DUCEN. DUCEN reserves the right to grant
licenses to use or otherwise exploit the Software Materials to any other person or body. The LICENSEE shall not
acquire any intellectual property rights of whatever nature in the Software Materials and may not copy them or
attempt in any way to decompile, disassemble, imitate or reverse engineer the Software except as expressly
permitted in this Agreement.
9.2 The LICENSEE shall notify DUCEN immediately if the LICENSEE becomes aware of any unauthorized use or
exploitation of the whole or any part of the Software Materials by any person or body.
9.3 The LICENSEE will permit DUCEN or any third party authorized by DUCEN to check the use of the Software
Materials by LICENSEE at all times during normal business hours, and for that purpose the LICENSEE shall grant
DUCEN (and its agents, employees and representatives) a license to enter its premises and audit the records
and systems of the LICENSEE at any time during normal business hours, upon DUCEN giving the LICENSEE five
(5) days written notice prior to the date of such inspection.
If the inspection/audit reveals that the LICENSEE is using the Software Material beyond the scope of the license
granted herein, then notwithstanding and without prejudice to any other remedies available to DUCEN, the
LICENSEE will promptly reimburse DUCEN for the cost of such audit and pay for DUCEN the underpaid License
Fees therefore and all other associated fees including maintenance and support based on DUCEN’s then current
list rates, as well as any applicable late charges.
9.4 All grants of rights to use Intellectual Property intended to be accomplished by this license are explicitly stated
and no additional grants of such rights shall be inferred or created by implication. LICENSEE warrants to DUCEN
that, unless otherwise agreed to in writing, LICENSEE is not purchasing the rights granted by this license in
anticipation of reselling those rights.
10. CONFIDENTIALITY OF THE PROPRIETARY INFORMATION
10.1 The LICENSEE undertakes to treat as confidential and keep secret the Proprietary Information, and shall not
without the prior written consent of DUCEN:
- exploit the Proprietary Information in whole or part other than as may be necessary to enable the LICENSEE
to use the Software Materials in accordance with the terms and conditions of this Agreement;
- disclose the Proprietary Information in whole or part or make any aspect of the Proprietary Information
available to any person or body, other than to:
- the LICENSEE’s own employees as need to know or use the same for the purpose of performing their
duties to the LICENSEE for processing the LICENSEE’s own data for its internal business purposes;
- any person or body who is appointed by the LICENSEE to maintain any equipment on which the
Software is used (in accordance with the terms of this Agreement) and then only to the extent necessary to enable such person or body to properly maintain such equipment.
- the LICENSEE’s own employees as need to know or use the same for the purpose of performing their
10.2 The LICENSEE undertakes to ensure that any person or body to whom any part of the Proprietary Information
is disclosed pursuant to Clause 11.1(b) is made aware prior to the disclosure of any part of the Proprietary
Information that (i) the same is confidential and (ii) they owe an express duty of confidence to DUCEN. The
LICENSEE shall indemnify and hold the DUCEN harmless against any loss or damage which DUCEN may suffer
or incur as a result of the LICENSEE failing to comply with such undertaking.
10.3 The LICENSEE shall indemnify DUCEN for any loss occasioned to DUCEN on account of breach of DUCEN’s
proprietary rights by any person or body to whom the LICENSEE divulges all or any aspect of the Proprietary
Information and shall give DUCEN all reasonable assistance in connection with any proceedings which DUCEN
may institute against such person or body in respect of such breach of confidence.
10.4 The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any
termination of this Agreement.
11. INTELLECTUAL PROPERTY INFRINGEMENT
11.1 The LICENSEE hereby undertakes that it shall not either directly or indirectly infringe upon the intellectual
property rights of DUCEN upon the Software Material.
11.2 The LICENSEE shall indemnify DUCEN against any expense or loss DUCEN may incur resulting from the
infringement of DUCEN’s and/third party patents, copyrights, database rights, trade secrets, trademarks or
other proprietary or intellectual property rights whatsoever, howsoever or wheresoever arising in
consequence of any matter referred to herein.
11.3 If claims arise out of the infringement of any patent or copyright of any third party which is valid and effective
at the date of this Agreement, with respect to the use by the LICENSEE of the Software pursuant to the terms
of this Agreement:
- the LICENSEE shall promptly notify DUCEN in writing of any allegations of infringement of which it has notice
or becomes aware;
- DUCEN shall have sole control over the defense of any such suit or claim and over all negotiations in relation
thereto, responsibility for any and all attorneys’ fees and legal costs related to defense of any such suit or
claim, and, in particular, the LICENSEE shall not make or attempt to make any settlement or admit any
liability in relation to such suit or claim without the prior written consent of DUCEN;
- the LICENSEE shall take such actions and provide such information and enter into all such documents as
DUCEN may reasonably require in relation to the defense of any such suit or claim.
11.4 If LICENSEE is prohibited by a court order from using the Software, then DUCEN shall have the right at its sole
option to terminate this Agreement in respect of the Software so affected, if DUCEN considers that, in its
reasonable opinion, the foregoing alternatives are not available on reasonable terms, in which event the LICENSEE shall cease using such prohibited Software forthwith and, at DUCEN’s direction, shall return, or certify
that it has destroyed, the original copies of such Software so affected and any copies made by the LICENSEE
thereof. In such event, DUCEN shall not refund the license fees paid by the LICENSEE and DUCEN shall be under
no further liability to the LICENSEE with respect to the Software so affected.
11.5 Where any computer program materials, in relation to which rights are owned by a third party, are to be copied
or otherwise used by the LICENSEE in association with the Software Materials, the LICENSEE warrants that they
have any and all necessary permissions, express or otherwise, to enable them to copy or otherwise use such
computer program materials without infringing such third parties’ rights.
11.6 If the LICENSEE discloses such computer program materials to DUCEN or requests or permits DUCEN to copy
or otherwise use such computer program materials, the LICENSEE warrants that they are entitled to make such
disclosures or requests or give such permission, and that it has any necessary consent, express or otherwise,
to enable DUCEN to copy or otherwise use such computer program materials as so requested or permitted
without infringing said third party rights.
12. CONFIDENTIAL INFORMATION
12.1 Except as otherwise permitted under this Agreement, the Recipient will not disclose to any third party, or make
any use of, the Discloser’s Confidential Information and shall take all measures to maintain the confidentiality
of the Discloser’s Confidential Information.
12.2 The LICENSEE’s obligation to maintain as confidential, the information contained in any or all of the Software
material including any software programs, all algorithms, methods, techniques, code and processes revealed
therein, will survive in perpetuity.
12.3 DUCEN shall treat as confidential all information supplied by the LICENSEE under this Agreement which is
designated as confidential by the LICENSEE or which is by its nature clearly confidential (the LICENSEE’s
Confidential Information). This Clause shall not extend to any information which:
- a) was lawfully in the possession of DUCEN prior to the commencement of the negotiations leading to this
- b) is already public knowledge or becomes so at a future date;
- c) comes into DUCEN’s knowledge from a third party who lawfully possesses such information.
12.4 DUCEN shall not divulge any LICENSEE Confidential Information to any person or body except to:
a) such of its own employees, consultants, agents or representatives including the suppliers of any third party
- software as need to know the same for the purpose of performing their duties pursuant to this Agreement.
DUCEN shall ensure that its employees, consultants, agents or representatives are aware of and comply
with the provisions of this Clause;
- b) DUCEN’s auditors and any other bodies having the right, duty or obligation to know the business of DUCEN
and then only in pursuance of such right, duty or obligation.
12.5 The foregoing obligations of this Clause shall survive any termination of this Agreement for a period of one
year from the date of termination of this agreement.
13. LIMITATION OF LIABILITY
13.1 Notwithstanding anything in this agreement to the contrary in no event will DUCEN and/or any of its suppliers
be liable to or through LICENSEE for: (a) any indirect, special, incidental or consequential damages (including,
but not limited to, lost profits, lost saving, or interruption of business) suffered by LICENSEE for any reason; (b)
any damages suffered by LICENSEE as a result of LICENSEE’s failure to live up to LICENSEE’S obligations
hereunder, or (c) any claim against LICENSEE by any third party for damages of any kind; any or all of which
arise from or in connection with the delivery, or use of, or performance of the Software Material, and even if
DUCEN and/or any of its suppliers have been advised of the possibility of such loss; this limitation of liability
was a material factor in the establishment of the License Fee paid by the LICENSEE to DUCEN .
13.2 The LICENSEE acknowledges that they are exclusively responsible for:
- supervision, management and control of the use of the Software Material pursuant to the terms of this
Agreement and ensuring that their personnel are, at all times, educated and trained in the proper use and
operation of the Software Materials;
- processing their data and ensuring the security and accuracy of all inputs and outputs;
- making regular back-up copies of their data to ensure recovery of their data in the event of malfunction of
- the selection, use of and results obtained from any other programs, equipment, materials or services used
in conjunction with the Software Materials.
13.3 Subject to what is stated in clauses 13.1 and 13.2 above, and notwithstanding anything contained in this
agreement, the liability of DUCEN to the LICENSEE in connection with this agreement including its breach shall
be restricted to and shall not exceed the License Fee that the LICENSEE actually paid to DUCEN under this
13.4 The LICENSEE shall indemnify DUCEN and shall keep DUCEN fully and effectively indemnified against any loss,
expense, or damage of any kind (direct, indirect, economic or consequential) arising from the breach of this
Agreement by the LICENSEE, its employees, agents or sub-contractors, LICENSEEs, third parties or customers.
14.1 Any Party hereto may terminate this Agreement forthwith on giving notice in writing, to a party committing
breaching, if the breaching Party commits any material or continuing breach of any term of this Agreement
and fails to remedy such breach within 15 days after the receipt of a request in writing from the aggrieved
Party to do so (such request will contain a warning of the aggrieved Party’s intention to terminate), provided,
however, DUCEN may terminate this Agreement immediately with written notice in the event that LICENSEE
fails to pay any part of the License Fee or any other amounts payable under this agreement within 15 days of
the due date for payment.
14.2 Forthwith upon the termination of this Agreement for whatever reason:
- a) the Parties shall be discharged from any further liability to perform under this Agreement, except as
otherwise specified in this Agreement;
- b) The LICENSEE shall pay DUCEN on demand for all goods and services provided to the LICENSEE by DUCEN
prior to such termination;
- c) The breaching Party shall indemnify the party not in default, any loss suffered on account of such breach.
14.3 Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of
any party nor shall it affect the enforceability of any provision hereof which is expressly intended to come into
or continue in force on or after such termination.
15.1 The LICENSEE shall not be entitled to assign or otherwise transfer any part of this Agreement or assign, sublicense or otherwise transfer, resell, redistribute, charge or encumber the Software Materials or any copies
thereof without the prior written consent of DUCEN. Such consent, if given, may be made subject to the
payment of any additional fee and/or any other term or condition as specified by DUCEN. Any purported
assignment, license or transfer by the LICENSEE without such consent shall be void.
15.2 DUCEN may assign the benefit of this Agreement including the right to receive monies, or sub-contract the
performance of any of its obligations to DUCEN’s subsidiary without the consent of the LICENSEE.
16. WAIVER OF REMEDIES
No waiver of any rights arising under this Agreement shall be effective unless in writing and signed by a duly
authorized signatory of the Party against whom the waiver is to be enforced. No failure or delay by either party in
exercising any right, power or remedy under this Agreement (except as expressly provided herein) shall operate as
a waiver of any such right, power or remedy. Waiver of any one or more right arising under this agreement shall not
be treated as waiver of all the rights arising to the parties under this Agreement.
17. USE OF NAME AND TRADEMARKS; PRESS RELEASE COOPERATION.
Unless otherwise requested by Licensee, DUCEN may reference Licensee name and use Licensee logo and
trademarks as well as indicate that Licensee is a DUCEN customer in DUCEN’s business development and
marketing efforts and materials (both printed and online), including without limitation its website. Further,
promptly after execution of this Agreement, the parties shall work together in good faith to issue a press release
announcing the relationship created hereunder.
Any notices or other communications required or permitted hereunder or otherwise in connection herewith shall
be in writing and shall be delivered personally (including by courier), sent by facsimile transmission or sent by
certified or registered mail, postage prepaid. Any notice shall be deemed given when so delivered personally, or if
sent by facsimile transmission, when so transmitted provided that the sender’s facsimile machine produces printed
confirmation of error free transmission to the correct number, or if mailed, upon receipt, as follows:
DUCEN: 17708 Boniello Drive, Boca Raton, FL 33496, USA
Should any provision of this Agreement be void or illegal for any reason, the validity of the remainder of the
Agreement shall not be affected and the Parties shall promptly enter into negotiation in good faith to find a
replacement for the provision which is of similar economic effect to both Parties.
20. FORCE MAJEURE
Notwithstanding any provision in the Agreement to the contrary, neither party shall be in default under any provision
herein wherever, and for the period of time that performance of any contract obligation is prohibited, prevented or
made commercially impossible by reason of any act or occurrence of Force Majeure or the effective order or
injunction of any governmental agency or court. “Force Majeure” shall mean acts of God, war, insurrection, defaults
or delays due to changes in governmental regulations, acts of governmental bodies or their employees or agents,
inclement weather, strikes, lockouts, boycotts, picketing actions of any employees or any labor organizations, the
inability to secure labor or any materials including gas, water, food, fuel or electricity specified or reasonably
necessary in connection with building, delivering and installing the Software Material through ordinary business
channels, fire, unusual delays in transportation, unavoidable casualties or other circumstances having a materially
adverse effect upon the ability of either party to perform as provided herein that are reasonably out of the control
of the party whose performance is deficient provided, however, that the Parties hereto shall resume performing
such obligations as soon as such circumstances have ended.
21. FURTHER ASSURANCE
Each Party agrees to execute such documents and waivers and generally do everything further that may be necessary
to fulfill its obligations under this Agreement.
21.1 The Software Materials may be subject to regulations imposed by governmental authorities (the
REGULATIONS) restricting the ultimate destination of such Software Materials. The LICENSEE agrees to
indemnify DUCEN against any liability DUCEN may incur in consequence of LICENSEE’s infringement of the
Regulations, where DUCEN has attempted to substantially comply in good faith with said Regulations.
21.2 This Agreement shall be conditional on the LICENSEE complying with all regulations for the purchase,
installation and use of the Software Material in the location specified in the Schedule and DUCEN shall be
excused performance under this Agreement if the LICENSEE fails to comply with any statutory requirement in
connection with this Agreement.
DUCEN shall be permitted to reference this Agreement in one or more press releases; otherwise, no public
statements concerning the existence or terms of this Agreement will be made or released to any medium except
with the prior approval of both Parties or as required by law. DUCEN and the LICENSEE are independent contracts
under this Agreement and nothing herein will be construed to create a partnership, joint venture or agency
relationship between them. This Agreement shall be construed as if drafted by both Parties and shall not be strictly
construed against either Party.
24. LAW AND DISPUTES
Any dispute, claims or disagreement arising out of or relating to this Agreement or to the breach thereof including
its interpretation, performance or termination, arising between the parties to the Agreement or any person acting
on behalf of the parties or claiming under this Agreement shall be referred to arbitration. A sole arbitrator, appointed
by DUCEN, shall conduct the arbitration. The laws of the State of Florida shall govern the arbitration. The decision of
the arbitrator shall be final and binding upon the Parties. This Agreement and the terms and conditions thereon shall
be governed by the laws of the State of Florida.
25. ENTIRE AGREEMENT
24.1 This Agreement supersedes all prior agreements, arrangements, proposals and undertakings between the
Parties in relation to the subject matter hereof (whether written or oral) and constitutes the entire Agreement
between the Parties relating to the subject matter hereof. The LICENSEE further warrants that they have not
relied on any oral representation made by DUCEN or any agent, employee or other representative or upon any
description, illustration or specification contained in any advertisements, catalogues or publicity materials
produced by or on behalf of DUCEN or in any correspondence between DUCEN and LICENSEE before the date
of this Agreement.
24.2 No addition to or modification of any provision of this Agreement shall be binding upon the Parties unless
made by a written instrument signed by a duly authorized signatory of each of the Parties. Any other terms,
conditions or provisions whether proposed by LICENSEE orally or in writing shall be of no effect and the supply
of the Software Materials or any other goods or services by DUCEN to the LICENSEE shall not constitute
acceptance by DUCEN of such other terms, conditions or provisions.