Sesame Software, Inc.
SOFTWARE LICENSE AGREEMENT
IMPORTANT—READ CAREFULLY: This End-User License Agreement (“Agreement”) is a legal agreement between you (either an individual or a single entity) and Sesame Software, Inc. for the software that accompanies this Agreement, which includes associated media and services ("Software").  An amendment or addendum to this Agreement may accompany the Software.  YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING, COPYING, OR USING THE SOFTWARE.  IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT FOR A FULL REFUND, IF APPLICABLE. SESAME’S SOFTWARE PROGRAMS ARE COPYRIGHTED AND LICENSED ON A NONEXCLUSIVE BASIS. SESAME DOES NOT SELL OR TRANSFER TITLE TO THE LICENSED PROGRAM(S) TO YOU. YOUR LICENSE OF THE LICENSED PROGRAM WILL NOT COMMENCE UNTIL YOU HAVE EXECUTED THIS AGREEMENT AND AN AUTHORIZED REPRESENTATIVE OF SESAME HAS RECEIVED, APPROVED, AND EXECUTED A COPY OF IT AS EXECUTED BY YOU.
1. License and Delivery. In consideration of the payment of the license fees, Sesame grants Company a nonexclusive license to perform, execute, display and use the package of computer programs and data in machine-readable form and any related materials, including documentation, which together constitute the “Licensed Program,” subject to the following terms and conditions. All software and materials to be provided by Sesame to Company hereunder will be delivered, at Company’s option, by (a) electronically transmitting such software and materials; or (b) by installing such software and materials on physical media provided by Company.  Company may distribute or make the Licensed Program available to Affiliates, and/or use the Licensed Program for the benefit of Affiliates, and Affiliates will be entitled to the rights and benefits available to Company hereunder and subject to the restrictions applicable to Company hereunder.  For purposes of this Agreement, (a) “Affiliates” means entities Controlling, Controlled by or under common Control with Company, and (b) “Control” and its derivatives shall mean the possession, direct or indirect, of the power to direct or cause the direction of management and policies, whether through the ownership of voting shares or by contract.  In addition, in the event Company divests an entity, such divested entity may continue to use the Licensed Program, subject to the terms and conditions herein, for a transition period of no more than twelve (12) months.
2. Scope of Rights. You may:
a) Install the Licensed Program on one Production, one Quality Assurance, and one Development computer at location(s) owned or operated by you or a third party outsourcer as provided below;
b) Use and execute the Licensed Program for purposes of serving the needs of your business;
c) In support of your authorized use of the Licensed Program, store the Licensed Program’s machine readable instructions or data in, transmit it through, and display it on computers; and
d) Make one copy of the Licensed Program in machine-readable, object code form, for nonproductive backup purposes only, and make such other copies as are necessary for routine backup and for disaster recovery purposes.
Notwithstanding anything herein to the contrary, nothing herein prohibits the Company from having the Licensed Program hosted by a third-party outsourcer for the benefit of the Company or accessed and operated by third parties for the benefit of the Company, provided such third parties are subject to confidentiality restrictions consistent with this Agreement.
3. Fees and Payments.  You must pay the license fee for the Licensed Program directly to Sesame. You are solely responsible for the payment of any applicable taxes (including sales or use taxes, intangible taxes, and property taxes) resulting from your procurement of this license and your possession and use of the Licensed Program (“Licensee Taxes”), exclusive of taxes based on Sesame’s income, and exclusive of any taxes on any hardware, software, facilities, personnel, materials or other resources purchased, licensed, leased or otherwise procured by Sesame in connection with providing the Licensed Programs or services hereunder. Sesame reserves the right to have you pay any such Licensee Taxes as they fall due to Sesame for remittance to the appropriate authority. You agree to hold harmless Sesame from all claims and liability arising from your failure to report or pay such taxes.
Sesame reserves the right to change the support and maintenance fees on 60 days’ advance notice (to apply on a prospective basis only), provided that such fee increases are applied equally to all subscribers to the support and maintenance services.  All fees are payable upon invoice. You reserve the right to cancel Support and Maintenance at any time with notice to Sesame.
4. Support.  Sesame will promptly provide to Company any new functionality, updates and enhancements, and code repairs or fixes required to correct problems with the Licensed Program (collectively, “Upgrades”), regardless of their designation, at the same time as Sesame makes such Upgrades commercially available to other licensees of the Licensed Program. All modifications, updates, and enhancements will become part of the base product, and will be wholly owned by Sesame Software and made a part of the product offered for general license to the public. Sesame will also provide to Company email, web support, and phone support services for problem resolution. However, Sesame offers support only for the most current and prior major version of the Licensed Program issued by Sesame from time to time, so you must make sure to obtain and substitute or incorporate all new versions issued by Sesame pursuant to its warranty and support programs. Support is included in the license fee. Product usage will expire one year after start of license period, and must be renewed annually.
5. Your Responsibilities. You are responsible for selecting operators to operate the Licensed Program on your own equipment and it is your responsibility to ensure these operators are familiar with the information, calculations, and reports that serve as input and output of the Licensed Program.
Except as agreed otherwise in writing, Sesame assumes no responsibility under this Agreement for converting your data files for use with the Licensed Program.
6. Proprietary Protection and Restrictions. Sesame shall have sole and exclusive ownership of all right, title, and interest in and to the Licensed Program and all modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to you herein by Sesame. This Agreement does not provide you with title or ownership of the Licensed Program, but only a right of limited use. You must keep the Licensed Program free and clear of all claims, liens, and encumbrances.
You may not modify or distribute to third parties the Licensed Program (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Sesame. You may not reverse engineer, reverse compile, or otherwise translate the Licensed Program. No service bureau work, multiple-user license, or time-sharing arrangement is permitted, except as expressly authorized by Sesame. You hereby authorize Sesame to enter your premises on 5 days prior notice in order to inspect the Licensed Program in any reasonable manner during regular business hours to verify your compliance with the terms hereof.
You acknowledge that, in the event of your breach of any of the foregoing provisions, Sesame will not have an adequate remedy in money or damages. Sesame shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Sesame’s right to obtain injunctive relief shall not limit its right to seek further remedies.
If a third party claims that the Licensed Program infringes its patent, copyright, or trade secret, or any similar intellectual property right, Sesame will defend and indemnify you against that and all such claims at Sesame’s expense and pay all damages that a court finally awards or that is the subject of a full and final settlement, provided that you promptly notify Sesame in writing of the claim (provided that any delay in providing such notice shall not relieve Sesame of its indemnification obligations except to the extent prejudiced by such delay), and allow Sesame to control, and cooperate with Sesame in, the defense or any related settlement negotiations, provided that any settlement which admits guilt, culpability or liability on the part of Company will require Company’s prior written consent. If such a claim is made or appears possible, you agree to permit Sesame to enable you to continue to use the Licensed Programs, or to modify or replace them, provided that any modified or replacement programs are at least equivalent in functionality, performance and compatibility as the Licensed Program. If Sesame determines that none of these alternatives is reasonably available, you agree to return the Licensed Program on Sesame’s written request, and you will then receive a refund of the amount paid as the license fee for the Licensed Programs determined in accordance with generally accepted accounting principles. However, Sesame has no obligation for any claim based on your modification of the Licensed Program or its combination, operation, or use with any product, data, or apparatus not specified or provided by Sesame or identified in the applicable documentation, provided that such claim solely and necessarily is based on such combination, operation, or use and such claim would be avoided by combination, operation, or use with products, data, or apparatus specified or provided by Sesame. THIS PARAGRAPH STATES SESAME’S ENTIRE OBLIGATION TO YOU WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
7. Limited Warranty and Limitation of Liability. Sesame warrants, for your benefit alone, that it owns or otherwise has the right to grant the license to the Licensed Program, and that the Licensed Program conforms in all material respects to the specifications for the current version of the Licensed Program.
Sesame is not responsible for obsolescence of the Licensed Program that may result from changes in your requirements. The foregoing warranty shall apply only to the most current version of the Licensed Program issued by Sesame from time to time Sesame assumes no responsibility for the use of superseded, outdated, or uncorrected versions of the Licensed Program.
As your exclusive remedy for any material defect in the Licensed Program for which Sesame is responsible, Sesame shall attempt through reasonable effort to correct or cure any reproducible defect by issuing corrected instructions, a restriction, or a bypass. In the event Sesame does not correct or cure such nonconformity or defect after it has had a reasonable opportunity to do so, your exclusive remedy shall be the refund of the amount paid as the license fee for the defective or nonconforming module of the Licensed Program. Sesame shall not be obligated to correct, cure, or otherwise remedy any nonconformity or defect in the Licensed Program if you have made any changes whatsoever to the Licensed Program, if the Licensed Program has been misused or damaged in any respect, or if you have not reported to Sesame the existence and nature of such nonconformity or defect.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SESAME DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE LICENSED PROGRAM, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, AND ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE. BOTH PARTIES DISCLAIM ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
THE CUMULATIVE LIABILITY OF ALL PARTIES FOR ALL CLAIMS RELATING TO THE LICENSED PROGRAM AND THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL LICENSE FEES PAID TO SESAME HEREUNDER. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO THE INDEMNIFICATION PROVIDED IN SECTION 6 HEREOF. SESAME SHALL HAVE NO LIABILITY FOR LOSS OF DATA OR DOCUMENTATION, IT BEING UNDERSTOOD THAT YOU ARE RESPONSIBLE FOR REASONABLE BACKUP PRECAUTIONS.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS; ANY SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
You may have additional rights under certain laws (e.g. consumer laws) that do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If such laws apply, our exclusions or limitations do not apply to you.
8. Term of Agreement; Termination. Your license of the Licensed Program shall become effective upon delivery of the Licensed Program to and acceptance of such Licensed Program by you and shall continue indefinitely, unless sooner terminated as provided herein. The term of this agreement is one (1) year and this agreement shall automatically renew for successive one (1) year terms unless Company gives notice of non-renewal no less than sixty (60) days notice prior to the end of the term. Upon termination of this Agreement, all rights granted to you will terminate and revert to Sesame. Promptly upon termination of this Agreement for any reason or upon discontinuance or abandonment of your possession or use of the Licensed Program, you must return or destroy all copies of the Licensed Program in your possession (whether modified or unmodified), and all other materials pertaining to the Licensed Program (including all copies thereof).
9. Bankruptcy. The Parties hereby agree that if a Party becomes a debtor or debtor-in-possession under Title 11 of the United States Code (the "Bankruptcy Code"):  (i) in the event of a rejection or proposed rejection of the Agreement under Section 365 of the Bankruptcy Code, any and all rights licensed pursuant to this Agreement shall be deemed to fall within the definition of “intellectual property” under Section 101 of the Bankruptcy Code and, in connection therewith, section 365(n) of the Bankruptcy Code shall be implicated by such rejection or proposed rejection; and (ii) notwithstanding Section 365(c) of the Bankruptcy Code or applicable non-bankruptcy law which prohibits, restricts or conditions the assignment of the Agreement or any of the rights therein, the debtor-in-possession or trustee in bankruptcy may assume this Agreement.
10. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to principles of conflicts of laws.
No modification of this Agreement shall be binding unless it is in writing and is signed by an authorized representative of the party against whom enforcement of the modification is sought.
Your rights may not be transferred, leased, assigned, or sublicensed except for a transfer of the Licensed Program in its entirety to a successor in interest of your entire business who assumes the obligations of this Agreement.
Any notices required or permitted under this Agreement shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, with proper postage affixed.
In the event that any of the terms of this Agreement is or becomes or is declared to be invalid or void by any court or tribunal of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from this Agreement and all the remaining terms of this Agreement shall remain in full force and effect.
Should Sesame discontinue business operations or be part of a merger or any other re-organization in which such new entity no longer supports or markets the software under this agreement, Sesame will grant to you, prior to such reorganization, a license of the software in perpetuity, at no additional charge. Sesame will provide all technical information, including but not limited to source code and patches, that allows you to run the software after the registration code expires.
THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF SESAME’S AND YOUR OBLIGATIONS AND RESPONSIBILITIES AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF OF SESAME RELATING TO THE SUBJECT MATTER HEREOF.