This License Agreement (the “Agreement”) is made by ICLEI – Local Governments for Sustainability U.S.A., INC. (“ICLEI”) and 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 more particularly described in Appendix A, which is attached hereto and incorporated by this reference, inclusive of any associated written materials supplied by ICLEI (collectively, the “Software”). Customer desires to license the Software on the terms set forth in this Agreement.
1. License
Subject to the terms of this Agreement, ICLEI hereby grants to Customer, and Customer hereby accepts, a nonexclusive license, throughout the term and within any limited geographical scope defined in Appendix A, to: (i) access, use, perform, publicize and display the Software; and (ii) provide access and use of the Software any third party users if and as specified in Appendix A (“Authorized Users”), provided that Customer and all Authorized Users shall comply with the terms and conditions of use applicable to such Authorized Users specified in Appendix B attached hereto and incorporated by reference, as amended from time to time in ICLEI’s sole discretion. The license granted to Customer hereunder is nontransferable and non-assignable except to Customer’s subsidiaries or successors-in-interest. Customer and each Authorized User shall be required to create an account to access the Software. Customer shall not, and shall not permit any Authorized User to, allow any other party to use its account to access or use the Software.
2. Ownership of Intellectual Property
Subject to the license granted to Customer in Section 1 above, ICLEI and its licensors shall have and retain all right, title and interest in and to the Software, including without limitation all rights in the patents, copyrights, trade secrets and other intellectual property in the Software. Except for the license provided hereunder, Customer does not acquire any right, title or interest in or to the Software. Customer shall not copy, reverse engineer or create derivative works of the Software.
3. License Fee
Customer will pay ICLEI the license fee set forth and as provided in Appendix A.
4. Customization
If indicated in Appendix A, ICLEI will customize the Software to suit Customer’s particular needs as provided therein.
5. Additional ICLEI Services
ICLEI will provide additional services to Customer and/or Customer’s Authorized Users if and to the extent specified in Appendix A.
6. Use of Data
Customer grants to ICLEI a non-exclusive, worldwide, royalty-free, fully paid-up, perpetual, irrevocable right and license to access and use, at its discretion, any information entered into the Software application by Customer or by any Authorized Users to whom Customer provides access and use of the Software in accordance with Section 1 above, subject to the terms and conditions of ICLEI’s privacy policy, as amended from time to time.
7. ICLEI’s Warranties
(a) 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.
(b) 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.
(c) ICLEI EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. Without limiting the generality of the foregoing, ICLEI does not warrant that the Software will perform without error, interruption or loss of data.
8. Customer’s Warranties
Customer hereby warrants and represents, for itself and its Authorized Users, that: (i) it will accurately identify itself when creating an account to access the Software and will maintain the accuracy of such identification and will not allow any other party to use its account; (ii) at all times when accessing and using the Software, it will act in compliance with all applicable federal, state, and local laws, regulations and ordinances; (iii) it will comply with ICLEI’s applicable Terms of Use and Privacy Policy, as amended from time to time by ICLEI in its sole discretion; (iv) it shall not grant any rights in and to the Software to any third party which are inconsistent with the rights granted to Customer in this Agreement; and (v) the person executing this Agreement on behalf of Customer has the full right and authority to enter into and execute this Agreement.
9. Indemnity
(a) ICLEI will 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, arising out of or relating to claims or suits for damage 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) Customer promptly notifies ICLEI in writing no later than 30 days after Customer’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.
(b) Customer will indemnify, hold harmless, and defend ICLEI and its directors, officers, employees, and agents from and against any and all losses, liabilities, damages, claims and expenses, including reasonable attorneys’ fees and court costs, arising out of or relating to: (i) use of the Software by Customer or any of its Authorized Users except for any claim due to the Software infringing on the rights of any third party; and (ii) any breach or default by Customer or any of its Authorized Users of any provision, representation or warranty under this Agreement.
10. Limitation of Liability
IN NO EVENT SHALL ICLEI BE LIABLE TO CUSTOMER OR ANY AUTHORIZED USER(S) FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY ANY OF THEM OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF ICLEI 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 to ICLEI under this Agreement.
11. 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. Either Party may terminate further performance of this Agreement if the other Party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days following receipt of notice from the non-breaching Party. Upon termination, all rights and obligations granted to Customer under this Agreement and any attachments hereto will immediately cease and revert to ICLEI, and ICLEI will immediately terminate access to the Software by Customer and its Authorized Users.
12. 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.
13. 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.
14. 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.
15. 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 electronically and/or in counterparts.
APPENDIX A
- Description of Software: ClearPath Web Application
- Term. The term of this Agreement is 1 year.
- Geographical Scope. The geographical scope of the license conveyed to Customer under this Agreement is:
- throughout Customer’s political jurisdiction [use for most local governments]
- throughout the political jurisdiction of the affiliated local government as indicated through the ClearPath Registration form [use for consultants or other external parties to the local government]
- Authorized Users. The maximum authorized number of users to whom non-ICLEI Member Customers may provide access to the Software is 4, for use exclusively in their business locations situated within the geographical scope defined above.
- License Fee. Customer shall pay ICLEI a license fee dependent on the Membership Status of the licensed local government or organization working on their behalf as follows:
- ClearPath Pro for ICLEI Local Government Members in good standing: $0.00 / Year
- ClearPath Pro for Non-Members: $7,500 / Year