IMPORTANT: READ CAREFULLY BEFORE PROCEEDING.
READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE CONTINUING WITH USING THE ADAPT SOFTWARE, BETA RELEASE.
BY CHOOSING “YES” BELOW, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THIS USER AGREEMENT AND AGREEING TO ITS TERMS ON BEHALF OF THE ORGANIZATION USING IT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD CHOOSE “NO”, WHICH WILL CANCEL SETUP, AND PROMPTLY RETURN THE SOFTWARE TO ICLEI USA – LOCAL GOVERNMENTS FOR SUSTAINABILITY USA, INC. (“ICLEI USA”), 180 CANAL STREET, SUITE 401, BOSTON, MA 02114.
This License Agreement (the “Agreement”) is made by ICLEI – Local Governments for Sustainability U.S.A., INC. (“ICLEI”) and the local government accepting the terms in this agreement, the party executing this Agreement as “Customer”. ICLEI and Customer are sometimes collectively referred to as the “Parties” and individually as “Party.” ICLEI is the creator and owner of certain intellectual property known as the “Climate Resilient Communities Program” together with associated software known as ADAPT (“Software”). Customer desires to license the Software.
- License. Subject to the terms of this Agreement, ICLEI hereby grants, and Customer hereby accepts a nonexclusive license, throughout the term and geographical scope defined in Appendix A, to use, perform, publicize and display. Customer may provide access and use of the Software to others up to the maximum number of users, as specified in Appendix A. Said license is nontransferable and non-assignable except to Customer’s subsidiaries or successors-in-interest. Customer obtains no ownership rights in the Software. Except as expressly provided in this Agreement, all rights in the Software and the Climate Resilient Communities program are reserved to ICLEI.
- License Fee. Customer will pay ICLEI the license fee set forth and as provided in Appendix A.
- Warranties. ICLEI hereby warrants and represents to Customer that: (i) ICLEI is the owner of the Software or otherwise has the right to grant to Customer the licenses granted in this Agreement without violating any contract rights of any third party; (ii) to the best of ICLEI’s knowledge, the Software does not and will not infringe any intellectual property or other proprietary rights of any third party; (iii) there is currently no pending or threatened claim or suit by any third party based on an alleged violation of such rights by ICLEI; and (iv) the Software is free and clear from any and all liens and encumbrances whatsoever.
- For any breach of the warranties above, ICLEI will, at its sole option, (i) repair or replace the non-conforming software within a commercially reasonable time of notice of such condition; or (ii) credit or refund to Customer the license fee paid by Customer for the Software.
- ICLEI expressly disclaims all other warranties, whether express or implied, including without limitation the implied warranties of merchantability and fitness for a particular purpose.
- Indemnity. ICLEI agrees to indemnify, hold harmless and defend Customer and its directors, officers, employees and agents from and against all losses, liabilities, damages, claims and expenses, including reasonable attorneys’ fees and court costs, allegedly arising out of or relating to claims or suits for damage, or injury to any person or property in connection with, in whole or in part, from any claim by a third party alleging that Customer’s use or possession of the Software infringes or violates the patent, copyright, trade secret, proprietary, or other intellectual property right of any third party, provided that: (i) Partner promptly notifies ICLEI in writing no later than 30 days after Partner’s receipt of notification of a potential claim; (ii) ICLEI may assume sole control of the defense of such claim and all related settlement negotiations; and (iii) Customer provides ICLEI, at ICLEI’s request and expense, with the assistance, information and authority necessary to perform its obligations under this Section.
- Limitation of Liability. In no event shall either party be liable for any indirect, incidental, special or consequential damages, including without limitation damages for loss of profits, data or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages. ICLEI’s aggregate and cumulative liability for damages hereunder shall in no event exceed the amount of fees paid by Customer under this Agreement.
- Termination. This Agreement shall remain in effect throughout the term unless terminated by the Parties’ mutual agreement to terminate or either Party’s invocation of its termination rights in this section. Accrued payment obligations, indemnities, liability limitations, confidentiality obligations and responsibilities for governmental charges contained in this Agreement will survive termination. Upon termination, all rights and obligations granted to Customer under this Agreement and any attachments hereto will immediately cease and revert to ICLEI.
- Termination by Customer. Customer may terminate this Agreement for any reason, at any time by providing ICLEI thirty (30) days prior written notice.
- Termination by ICLEI. If Customer materially breaches any term of this Agreement, and has not cured such breach within thirty (30) days of receipt of ICLEI’s written notice of such breach, ICLEI may terminate this Agreement.
- Force Majeure. Neither Party shall be liable for any delay in meeting or for failure to meet any of its obligations under this Agreement due to any cause outside of its reasonable control including, without limitation, strikes, lock-outs, acts of God, riot, acts of war, epidemics, malicious acts of damage or terrorism, fire, acts or omissions of any governmental authority, failure of the public electricity supply, and any other failure or delay on the Party’s part beyond the Party’s reasonable control. The Party desiring to claim relief by alleging the existence of a force majeure event shall notify the other Party in writing as soon as is reasonably possible following onset of the event.
- Relationship of the Parties. Nothing in this Agreement shall constitute, nor shall any Party represent that there is any relationship of employer and employee, principal and agent or partnership between the Parties as a result of this Agreement.
- Controlling Law; Severability; Waiver. This Agreement will be governed by the substantive laws of the State of California, which shall be the exclusive venue for any dispute. The illegality or unenforceability of the whole or any part of the provisions of this Agreement will not affect the continued operation of the remaining provisions of this Agreement. The failure of either Party at any time to insist upon strict performance of any of the terms and conditions contained in this Agreement will not be deemed a waiver of its right at any time thereafter to insist upon strict performance.
- Miscellaneous. This Agreement: (i) is not exclusive in any respect, and each Party may enter into similar agreements with other parties; (ii) is the complete agreement of the Parties relating to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter; (iii) will inure to the benefit of the successors and assigns of the Parties hereto, provided, however, that the license to the Software granted hereby is nontransferable and non-assignable except to Customer’s subsidiaries or successors-in-interest; (iv) may be modified only by a duly executed written agreement; (v) shall not be construed more strictly against either Party by reason of having drafted it; and (vi) may be executed in counterparts and facsimile signatures shall be binding as originals.
- Term. The term of this Agreement shall be which ever occurs first, the end of one year or the release of version 1.0 of the software.
- Geographical Scope. The geographical scope of the license conveyed to Customer under Agreement is throughout Customer’s political jurisdiction.
- License Fee. Customer shall pay ICLEI an annual license fee of $0 for this version of the software.