This Software License Agreement is between Sassafras Software, LLC (“Sassafras”) and you (“You” and “Licensee”). The terms of this Software License Agreement, the Quote and the Service License Certificate collectively are the terms that govern your use of the Software (“License Agreement”). By installing and/or using the Sassafras KeyServer Platform, You agree to and consent to abide by the terms of this License Agreement. If You do not agree with the terms of this License Agreement, do not install or use the Sassafras KeyServer Platform.
Important notice: The Sassafras KeyServer Platform can install a means of usage control and logging for common Windows, Macintosh, and Unix programs.
1. KeyServer Platform; License Grant and Restrictions.
The KeyServer Platform includes KeyServer, KeyReporter, Server License Certificate, KeyAccess, KeyConfigure, KeySentry, ksODBC, KeyCheckout and KeyVerify (collectively, “Software”). The Software is licensed with a unique serial number and configuration parameters to support specific management services on a limited set of client computers. The unique serial number and configuration parameters are specified in the Server License Certificate file (original file name: “server.lic”). More specific details concerning the Server License Certificate are described in “Server License Certificate Information”, which is attached as Exhibit A and incorporated into the License Agreement.
In consideration of You paying the Fees, Sassafras grants You a limited, nonexclusive, non-transferable right to use and to allow your Authorized Users to use the Software during the Term in accordance with the terms of the License Agreement and the applicable documentation (“Documentation”) (“License Grant”). The License Grant may be a perpetual (non-expiring) license or a limited-term license, depending on the specific features and terms set out in the applicable Quote and/or embodied in the applicable Server License Certificate. The Server License Certificate applicable to You may include additional usage rights, requirements and/or restrictions specific to You and the Authorized Users as concerns the use of the Software: it is your obligation to ensure that You and all Authorized Users read, understand, and abide by the terms of this License Agreement and the applicable Server License Certificate.
You may not make copies of the Software or the Server License Certificate, except for two (2) for internal backup purposes only. You may not modify, decompile, reverse engineer or create derivative works of the Software. You may not alter the serial number or configuration parameters either in the disk or memory image of the Software or take any other action inconsistent with the License Grant. You may not transfer, convey, rent, sub-license, transmit, provide access to, furnish or otherwise distribute the Software or Documentation to any third party. If You violate any of these restrictions it will: (a) be a material breach of this License Agreement; (b) result in immediate termination the License Agreement (with no refund); and, (c) be considered an infringement of Sassafras’s Intellectual Property Rights, for which Sassafras reserves its rights to take all possible legal recourse.
“Authorized Users” means your employees, designated sub-contractors and agents who may use the Software and Documentation for internal business purposes in accordance with the terms of this License Agreement and the applicable Server License Certificate. You confirm that you shall (a) be responsible and liable for all acts, errors and omissions of the Authorized Users as concerns their use of the Software and Documentation; and, (b) ensure that all Authorized Users understand and comply with all applicable terms and conditions of this License Agreement and the applicable Server License Certificate.
2. Intellectual Property Rights.
Sassafras retains all right, title and interest, including, without limitation, all copyright, trade secret, trademark, proprietary and patent rights, to and in the Software and Documentation (“Sassafras’s Intellectual Property Rights”). There is no sale, no assignment and no transfer of any rights, whatsoever, under this License Agreement.
3. Fees; Payment Terms; Taxes.
Sassafras shall issue You a document specifying the Software, the license type, the fees, payment due date(s), and other applicable terms (“Quote”). You must pay, in full, the fees specified in the applicable Quote (“Fees”) within 30 days after the payment due date, and, if not received by then the payment will be considered late and subject to the service charge described below and other legal remedies. All Fees must be paid in U.S. dollars. The Fees are exclusive of all applicable taxes, VAT, duties or other governmental assessments, which are the responsibility of Customer. Late payments shall be subject to a service charge equal to the lesser of 1.5% per month or the maximum amount allowed by law, with respect to the overdue amount. Sassafras may increase the Fees annually and will notify You accordingly. All payments are non-refundable, unless otherwise specified in this License Agreement.
4. Effective Date; Term; Termination; Survival.
If You are licensing the Sassafras software product known as AllSight under a perpetual license, then the specific term-related provisions will be listed in server.lic for that product. For all other Software, the initial term shall begin on the date listed on the applicable invoice, which Sassafras issues to You (“Effective Date”). The initial term shall commence on the Effective Date and run thereafter for a period of 12 months (“Initial Term”). On the one-year anniversary of the Initial Term, unless terminated earlier, this License Agreement shall renew for successive one-year terms if You have paid, in full, the Fees set out on the applicable renewal invoice (each, a “Renewal Term” and together with the Initial Term, the “Term”) until terminated in accordance with its terms. Either party may terminate this Agreement (a) upon 30 days prior written notice if the other party materially breaches this License Agreement and has not cured the same within the 30 day cure period, or (b) immediately upon written notice in the event of the filing of a petition for bankruptcy or reorganization by or against the other party or the dissolution or liquidation of the other party. Upon any termination of this License Agreement, You shall promptly: (i) pay all Fees that are due; (ii) discontinue use of the Software (except for perpetually licensed components), and Documentation (and ensure all Authorized Users do the same); (iii) return all copies of the Software and Documentation to Sassafras; and, (iv) certify in writing that You have complied with these requirements; and, both parties shall promptly return to the other party (or destroy the other party’s) Confidential Information. Any payment obligations, provisions providing for limitations on liability, and those terms, which by their nature were intended to survive any termination of this License Agreement, shall so survive.
5. Warranty; Disclaimers; Remedy; No High Risk Use; Customer Responsibilities.
5.1. Limited Warranty. Provided that You are using the then-current major release of the Software in accordance with the terms of this License Agreement and the applicable Server License Certificate, Sassafras warrants to You that: (i) the Software shall function substantially in accordance the applicable Documentation; and, (ii) it will use commercially reasonable efforts to undertake to fix discovered defects or errors within a reasonable timeframe if You have properly reported such defects and errors to firstname.lastname@example.org. The foregoing LIMITED warranty shall not apply if the non-conformance is not replicable or results FROM COMPONENTS OR THIRD-PARTY SOFTWARE used by YOU, WHICH Sassafras had not pre-approved in writing, including, without limitation, any lack of interoperability with such.
5.2. Disclaimer. Sassafras does not warrant that your USE OF THE SOFTWARE will be uninterrupted or error-free, or that all reported defects OR ERRORS will be corrected. EXCEPT FOR THE LIMITED WARRANTY DESCRIBED IN SECTION 5.1, SASSAFRAS EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES IMPLIED BY USAGE OF TRADE OR CUSTOM OF DEALING. FURTHER, SASSAFRAS DOES NOT REPRESENT OR WARRANT THAT: (A) THE SOFTWARE WILL BE ERROR-FREE OR VIRUS FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; OR, (C) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.
5.3. No High Risk Use. YOU SHOULD NOT USE THE SOFTWARE IN ANY HIGH RISK USE CASE (AS DESCRIBED BELOW) AND IF YOU DO IT SHALL BE DONE AT YOUR OWN RISK, WITHOUT ANY WARRANTY WHATSOEVER. AS USED HEREIN, A “HIGH RISK USE CASE” IS ANY USE WHERE THE FAILURE OF THE SOFTWARE COULD CAUSE SERIOUS RISK, INCLUDING RISK OF INJURY TO PERSONS OR PROPERTY, OR A LIFE-THREATENING SITUATION, INCLUDING BUT NOT LIMITED TO, MEDICAL, NUCLEAR, AVIATION, NAVIGATION, EMERGENCY SERVICES, EMERGENCY WEATHER ALERTS, PANDEMIC-RELATED OR MILITARY APPLICATIONS.
5.4. Remedy. Sassafras’s sole liability and Licensee’s sole and exclusive remedy for any breach of the limited warranty set forth above shall be, in Sassafras’s sole discretion, to either (i) use commercially reasonable efforts to provide an error-correction or work-around for the reported non-conformity, or (ii) terminate this Agreement and refund to You a pro-rata portion of the prepaid Fee as concerns the remainder of the Term, excluding Fees paid for perpetual license(s). Sassafras shall have no obligation with respect to a warranty claim unless Sassafras receives Licensee’s written notification of such claim promptly within the then-current Term.
5.5. Customer Responsibilities. You are solely responsible for maintaining your own connectivity and connection via any necessary hardware, software, telecommunications, electricity, web connection and internet connections, and for maintaining the security thereof, at your own cost and expense, and Sassafras is not responsible for any interruptions thereto. You expressly agree that Sassafras shall not be liable in any manner for any interruption in or inability to use the Software nor shall any such interruption or failure of usage be deemed a breach of the terms of this License Agreement. At all times during the Term, it is the Licensee’s sole responsibility to ensure it has a complete, current and accurate back up of all of Licensee’s data. It is your responsibility to familiarize yourself with the Sassafras privacy notice and related statements available at https://www.sassafras.com/legal-privacy/ and which may be updated from time to time.
6.1. Intellectual Property Indemnification. Subject to the limitation of liability set out in Section 7, below, Sassafras shall (a) indemnify and hold You harmless from costs, expenses, claims, liabilities, judgments, damages or losses, directly arising out of a third party claim that the Software infringes a United States copyright or trademark (“Claim”) and (b) indemnify You with respect to a finally adjudicated amount awarded by a court of competent jurisdiction directly resulting from a Claim. The foregoing obligations by Sassafras are contingent upon You providing Sassafras with: (i) prompt written notice of such Claim (and, in any event, written notice in sufficient time for Sassafras to properly respond without prejudice); (ii) the exclusive right to control, direct, and perform the investigation, defense, or settlement of such Claim; and, (iii) such assistance as may be reasonably requested by Sassafras at Sassafras’s expense. If Licensee’s use of the Software is, or in Sassafras’s opinion is likely to be, enjoined, or if required by settlement, or if commercially advisable, Sassafras may, at its discretion, either: (x) substitute the allegedly infringing element of the Software with functionally similar software; (y) procure for You the right to continue using the Software; or, (z) terminate this License Agreement and refund to You the pro-rata portion of the prepaid Fee as concerns the remainder of the Term, excluding Fees paid for perpetual license(s). THIS SECTION 6 SETS FORTH SASSAFRAS’S SOLE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD-PARTY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
6.2. Exceptions. Sassafras’s foregoing defense and indemnification obligations shall not apply if the alleged infringement arises from Licensee’s: (a) unauthorized use of the Software or Documentation; or, (b) modification of the Software or usage or combination of the Software with third-party products, services, hardware, or software unless such modification, use or combination was specifically pre-authorized in writing by Sassafras.
6.3. Indemnification Obligations. You shall indemnify and hold harmless Sassafras from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case arising out of (i) Licensee’s or an Authorized User’s breach of this License Agreement, including any representation, warranty, confirmation or obligation herein; (ii) any actual or alleged non-compliance by You or an Authorized User with applicable policies, Documentation, laws and regulations, including, without limitation, those concerning data privacy and data security; or (iv) Licensee’s or an Authorized User’s violation of the License Grant or Sassafras’s intellectual property rights.
7. Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, OR COSTS OF COVER, IN CONNECTION WITH THIS LICENSE AGREEMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE TOTAL LIABILITY FOR SASSAFRAS UNDER THIS AGREEMENT WITH ALL CLAIMS, DAMAGES AND LIABILITIES AGGREGATED, AND BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF THE FEES PAID BY YOU DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.
8. Confidentiality; Equitable Relief.
8.1. Confidential Information. Each party acknowledges that by reason of the relationship created between the parties under this License Agreement, it may have access to certain non-public information of substantial value concerning the other party’s business, operations, strategic plans, customers, suppliers, technology, competition and employees (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties or used other than for purposes expressly authorized hereunder. The terms of the Quote and any renewal Quote including, without limitation, the Fees, and any information relating to the pricing and the Software (by whomsoever generated or communicated) will be considered Confidential Information of Sassafras. Each party agrees (a) to maintain all Confidential Information received from the other, in whatever form disclosed, in strict confidence, (b) not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party, and (c) not to use the Confidential Information of the other party except as required in the performance of its obligations or the exercise of its rights hereunder. The foregoing obligations shall not apply to Confidential Information of a disclosing party that, as can be reasonably demonstrated with admissible evidence by the receiving party: (i) is or becomes a matter of public knowledge though no action or omission of the receiving party; (ii) was rightfully in the receiving party’s possession without restrictions on use or disclosure prior to its disclosure by the disclosing party; (iii) is rightfully obtained by the receiving party without an obligation of confidentiality from a third party who has no obligation of confidentiality, direct or indirect, to the disclosing party; (iv) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or, (v) is required to be disclosed by a court or other authorized tribunal, and then only to the extent of such requirement and only after given prompt notice of the requirement to the disclosing party.
8.2. Return of Confidential Information. Upon the written request of the disclosing party or upon any termination of this License Agreement, the receiving party shall (a) immediately return to the disclosing party or destroy all copies and partial copies of the Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any portions thereof from computers and systems) and (b) provide the disclosing party with written certification of its compliance with the terms of this Section.
8.3. Equitable Relief. Each party acknowledges that any breach of any of its obligations with respect to the other party’s Confidential Information may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such an event, the aggrieved party shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to the aggrieved party under law or in equity.
9. General Restrictions.
You hereby confirm your understanding that the only right granted hereunder as concerns the Software is a limited right for You and your Authorized Users to use the Software in accordance with the terms of this License Agreement. Further, You acknowledge that You and your Authorized Users may only use the Software (i) for your internal business purposes, (ii) in accordance with the terms of this License Agreement, and, (iii) in compliance with all applicable laws, rules, regulations, Sassafras policies, Documentation, the applicable Server License Certificate, and instructions provided by Sassafras, including, without limitation, those described in Exhibit A. You agree not to circumvent, disable or otherwise interfere with security-related features of the Software, or features that prevent or restrict usage or copying of any content or enforce limitations on usage of the Software or Documentation, or the content therein.
10.1. Assignment. You may not assign this License Agreement or any of the rights granted under this License Agreement, whether by operation of law or otherwise, without the prior written consent of Sassafras, which may be withheld for any or no reason. Subject to the previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors and assignees.
10.2. Publicity. You expressly grant Sassafras the right to include Licensee’s name, logo, brand name, URL, website, and trademark in a list of customers on Sassafras’s website or in other promotional or marketing materials.
10.3. Notices. Sassafras may send notices pursuant to this License Agreement to Licensee’s email contact points provided by You, and such notices will be deemed received 24 hours after they are sent. You may send notices pursuant to this Agreement to email@example.com and such notices shall be deemed received 72 hours after they are sent.
10.4. Waiver. A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver and shall not be construed as a waiver of future performance of any such term.
10.5. Force Majeure. Except as concerns payment obligations hereunder, neither party will be liable for any failure or delay in its performance under this License Agreement (or the performance of or use of the Software), due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action. The delayed party shall: (i) give the other party written notice of such cause promptly; and (ii) use its reasonable efforts to correct such failure or delay.
10.6. Entire Agreement; Construction. This License Agreement constitutes the entire understanding between Sassafras and You, and supersedes all prior discussions, representations, understandings, or agreements with respect to the subject matter of this License Agreement. If any provision of this License Agreement shall be held by a court of law to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and economic effect. The headings and captions used in this License Agreement are for convenience only, and shall not affect the interpretation of its terms.
10.7. Independent Contractors. The relationship of Sassafras and You is that of independent contractors, and nothing contained in the License Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking.
10.8. Governing Law and Jurisdiction; Attorneys’ Fees. This License Agreement shall be governed by and construed under the laws of the State of New Hampshire. The federal and state courts in Concord, New Hampshire shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement, and each party hereto expressly consents to the personal jurisdiction of such courts and waives any objection to venue. The prevailing party in any action to enforce this License Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
10.9. Modifications. Sassafras reserves the right to modify or discontinue the Software and Documentation at any time with or without notice to You, including, without limitation, by adding or subtracting features and functionality, third party content, etc. In the event of such modification or discontinuation, Licensee’s sole remedy shall be to terminate this License Agreement as set forth herein. Continued use of the Software and Documentation following any such changes will indicate your acknowledgement and acceptance of such changes and satisfaction therewith. Sassafras may change the terms of this License Agreement from time to time by updating these terms as posted online. Any such changes will become effective when notice is received or when so posted, whichever first occurs. If You object to any such changes, your sole recourse will be to terminate this License Agreement. Continued use of the Software and Documentation following such changes will indicate your acknowledgement of and your agreement to be bound by such changes.
Server License Certificate Information
The Server License Certificate file is authorized for use on one single computer in order to enable the Software component titled “KeyServer” to run with its unique serial number and configuration parameters. The one KeyServer installation is enabled by the Server License Certificate is Licensee’s “One KeyServer”. Licensee may not make copies of the Server License Certificate except for backup purposes. It is the Licensee’s obligation to protect the Server License Certificate from unauthorized duplication or theft, from unauthorized use, and from installation and/or use on more than one single computer.
The software provides a means of creating a “KeyShadow License Certificate” file based on the Server License Certificate. A KeyShadow License Certificate file may be used on multiple computers to enable the KeyServer software component to run redundant “shadow” processes. Licensee may make copies of the KeyShadow License Certificate only as is necessary to enable shadow service for the One KeyServer. While the Software component titled “KeyServer” may be installed and used on multiple computers with a KeyShadow License Certificate, only a single installation may be enabled with the Server License Certificate as described in the License Agreement.
The client software components titled “KeyAccess”, “KeyVerify”, “KeyCheckout”, and the associated Documentation may be duplicated and installed on all computers (virtual and physical) owned or managed by Licensee. Activation on some number of these client installations is initiated by a connection to the “One KeyServer”. The specific limits and services activated on client computers will depend on the configuration parameters specified in the Server License Certificate.
The software components titled “KeyConfigure”, “KeyReporter”, “KSRViewer” and “ksODBC” may be installed on one or more computers as required to facilitate the administration and report generation for the One KeyServer.