License and Support Agreement
END USER LICENSE AGREEMENT FOR THE JENNASON SERIALIZATION TEST TOOL

Agreement and License Grants
Thank you for selecting the Jennason Serialization Test Tool. This is a legal agreement between Jennason LLC ("Licensor") and the party that downloads, installs and/or uses the Jennason Serialization Test Tool software, each of whom accepts the terms of this agreement for itself ("Customer").  For the purposes of this Agreement, Licensor and Customer may each be referred to as a “party” and, collectively, as the “parties.”

 

Jennason Serialization Test Tool software is licensed and not sold, and the rights to use the software are set forth in this agreement. These license terms apply to the Jennason Serialization Test Tool and any Jennason Serialization Test Tool, supplements, Internet-based services, and support services.


Acceptance of these terms will constitute a legally binding agreement by and between Jennason LLC and Customer, the licensee. If Customer does not accept this agreement or does not want to be bound by these terms, Customer should not install or use the software and shall not have any licensee rights. If Customer complies with these license terms, Customer has the rights below. 


The Jennason Serialization Test Tool software is protected by intellectual property laws.  Customer is granted certain limited rights to install and use the software. Customer acknowledges and agrees not to use the software in a manner that violates any applicable law, regulation or this agreement.

1. Products and Services
1.1. The products and services that are covered by this license agreement are: 
a.    The ‘Core’ Serialization Test Tool, Vendor Enhancement Packages and Customer enhancements marketed by Jennason LLC;
b.    Software Support Services, which means the software support as described in the Software Support Services section of this agreement;

2. Software Licenses

2.1. Customer License Rights: Upon purchase of a license to a Licensed Product, upon its delivery Customer will have a non-exclusive, non-sublicensable and non-assignable (except as expressly set forth in Section 10.10) right to:
a.    install the Licensed Product on one or more computers which are the property of the Customer;
b.    allow End Users as defined in Section 2.2 to use the Licensed Product;
c.    use the Licensed Product only for purposes as defined in this Agreement; and
d.    make a reasonable number of copies of the Documentation for the Licensed Product, and use the Documentation solely to support Customer’s use of the Licensed Product.

2.2. End Users: Customer may designate the use of Licensed Product’s to either of the following groups of individuals:
a.    any of Customer’s employees; and/or
b.    contractors to Customer’s company who are under confidentiality or similar agreements and are required to return all work-related materials, including Licensed Software, at the end of the work assignment.


2.3. Conditions: Customer’s right to use the Licensed Product is conditioned upon Customer’s timely payment of the full amount of Fees due for the Licensed Product and Customer’s compliance with the terms of this Agreement, including the restrictions set forth in Section 2.4 below. 


2.4. Restrictions: Customer may not (and may not allow anyone else to):
a.    copy or use any Licensed Product (or Documentation) in any manner that is not expressly allowed by the rights set forth in Section 2.1;
b.    decompile, reverse engineer, or otherwise attempt to derive the source code for any Licensed Product or any underlying algorithms, user interface techniques, or other ideas embodied in a Licensed Product;
c.    tamper with, or attempt to circumvent or disable, any License Key (this includes, for example, resetting the CPU time in order to extend the License Term, or using a false host ID number or additional virtualized copy(ies) of the host ID number to enable unauthorized copies of a License Key);
d.    distribute any copy of a Licensed Product (or Documentation) or allow anyone other than permitted End Users to have access to or use (such as in a timesharing, service bureau, or application service provider model) any Licensed Product;
e.    modify or create a derivative work of any part of a Licensed Product or Documentation;
f.    disclose the results of any benchmarking of a Licensed Product (whether or not the results were obtained with assistance from Licensor) to any third party; or


2.5. Copies:
a.    If backup or archival copies of Documentation are made, Customer must reproduce all copyright, trademark, and other notices that appear on the original copy.
b.    Making Copies of Licensed Products is strictly prohibited.  If additional copies of Licensed Product are required they must be provided directly from Licensor.


2.6. Open Source Software: The Licensed Product may be delivered with software that is subject to open source licensing terms ("Open Source Software").  Licensee agrees that all Open Source Software shall be and shall remain subject to the terms and conditions under which it is provided. The Open Source Software is provided "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, AND LICENSOR FURTHER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO OPEN SOURCE SOFTWARE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Copyrights to the Open Source Software are held by the copyright holders indicated in the copyright notices in the corresponding source files.

2.7. Customer Representations: 
a.    Customer represents and warrants that it will accept all risk and liability associated to its use of the licensed product as part of planning, design, development, testing and support activities.  
b.    Licensor shall not be held responsible for any software defects identified in 3rd party software as a result of using the Licensed Product.  Furthermore, Licensor shall not be held responsible for the corresponding time and expenses required to correct such defects in 3rd party software.
c.    Customer agrees that use of the Licensed Product is not a substitute for the actual IT systems responsible for data capture, data generation and data communication as part of Customer’s operations
d.    Furthermore, Customer agrees Licensor is not responsible for any costs or damages incurred if actual IT systems responsible for data capture, data generation and data communication are not adequately tested or used in testing activities.

 


3. Licensed Software Delivery
3.1. Delivery: Licensor will deliver to Customer the Licensed Products along with the corresponding Documentation and License Keys. Licensor will deliver these materials to Customer electronically except where prohibited by law.

 


4. Payments
4.1. Payments: If Customer does not pay an amount by the scheduled due date, Licensor will have the right to withhold the delivery of future software, services and/or terminate this agreement.  In the event of non-payment within five (5) days of written notice by Licensor, Customer’s rights as a licensee of the Licensed Products shall immediately terminate.  All payments made to Licensor are non-refundable.  Customer may not offset any amounts Licensor owes against any payments to Licensor under this Agreement. Customer must make payments in U.S. dollars. 



5. Software Support Services
5.1. Support Services: The following detailed service parameters are the responsibility of Licensor in the ongoing support of this Software Support Services Agreement.  Customer understands that because customers use a variety of systems to support the Licensed Products, not every issue is completely resolvable.  Accordingly, Licensor shall only be required to provide a level of service under this Agreement that is reasonable and customary in the industry as related to the nature of the Licensed Product at issue.  


5.2. Software Support Service Scope:

Licensor agrees to provide Customer:

•    Email support from 8:00 AM to 5:00 PM US Central Time, Monday through Friday.
•    Provides software bug fixes as needed. 
•    Meeting response times corresponding to the severity of the incident.
•    Training required staff on software application. 
•    Facilitation of all support activities involving incident, problem, change, release and configuration management.
•    Execution of offline software activation process when necessary.


5.3. Software Support Process:

Email Customer service support (support@jennason.com) is provided to assist in resolving problems, obtaining clarification relative to services provided, and reporting suspected defects or errors in the software. Licensor will diligently work for the prompt resolution of defects and errors in our services, and will respond by using a dedicated contact email address for each support call. All Customer support issues are logged and internally tracked according to severity, Customer requirement and timeframe for fix. 

•    To Enter a support request, send an email to support@jennason.com
•    In the Email please include
     o    Customer Name
     o    Customer contact and contact information (email, phone)
     o    Issue Severity (as defined in this agreement- ‘Service Request’ Section)
     o    Description of the Issue including, if possible, the sequence of steps performed which caused the error to occur.
     o    Any additional documentation, such as screenshots, as attachments
•    Licensor will acknowledge receipt of the support request via email per the Response Times defined in this Agreement.
•    Licensor will provide resolution to the support request per the Response Times defined in this Agreement.

5.4. Service Requests:

Licensor will respond to and complete correction of errors, defects and malfunctions, in accordance with the following schedule: 

Severity Level    Description
1    Serialization Test Tool is unusable due to an application defect
2    A critical application feature does not work as expected and no work-around is available
3    A crucial application feature does not work as expected but a work-around exists and/or no immediate customer need exists
4    Enhancement request
5    General product clarification or question


5.5. Response Times:
Product Clarifications and General Questions: Initial Response to confirm receipt of support request within 1 business day with resolution provided within 2 business days of receipt of such support request.

Reporting of Software Bugs: Initial Response to confirm receipt of support request within 1 business day of receipt of such support request. Additionally,
Severity  1 & 2:    Licensor will use commercially reasonable efforts to provide a fix, work- around, or patch within 1 week after receipt of a support request from Customer.
Severity 3:    Licensor will use commercially reasonable efforts to provide a resolution within thirty (30) days of receipt of a support request from Customer and to incorporate Severity 3 fixes in the next upcoming release of the product.
Severity 4:    Severity 4 issues will be dealt with on a case-by-case basis.

5.6. Customer Responsibilities:

Customer agrees to provide:

•    Appoint one person as the principal point of contact for the communication of bugs and errors to Licensor and for the receipt of bug and error fixes, work-arounds and updates, if any (and as such contact may be updated by Customer from time to time). Customer may appoint another person as a back-up of the principal contact.
•    Appropriate incidents and/or request prioritization as previously outlined and/or in cooperation with Licensor. 
•    Reasonable availability of Customer representative(s) when resolving a service related incident or request.


6. Confidentiality
6.1. Confidentiality Obligations: Each party (in each case, the “Receiving Party”) agrees to abide by the following confidentiality obligations with respect to the other party's (in each case, the “Disclosing Party’s”) confidential information (the “Confidential Information”):
a.    do not disclose it to any third party (other than its “Representatives”) unless (i) the other party has given its specific and express prior written approval by a duly authorized representative of such party, or (ii) the disclosure is expressly allowed under this Agreement;
b.    do not use it for any reason other than to exercise its rights and perform its obligation under this Agreement; and
c.    protect it from unauthorized dissemination in the same manner as that party protects its own Confidential Information, and in any event with reasonable precautions (which include limiting access to Representatives on a "need-to-know" basis).
For the purposes of this Agreement, ”Representatives” means a party’s Affiliates and its and their respective officers, directors, employees, professional advisors, consultants, in each case, who are subject to confidentiality obligations and non-use restrictions no less restrictive than those set forth herein.
Confidential information includes 'personal data' as defined in REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR).

 


7. Term and Termination
7.1. Term: The term of this agreement is perpetual.


7.2. Termination: This license will terminate automatically if Customer fails to comply with the limitations described above. On termination, Customer must destroy all copies of the Software.


8. Warranty
8.1. Warranty:  A
ll Licensed Products, Documentation, and design techniques are provided "AS IS". Licensor disclaims all other warranties (express, implied, or statutory), including any warranties of merchantability, fitness for a particular purpose, title, or non-infringement and any warranties arising from a course of dealing or usage of trade.  


8.2.  LIMITATION OF LIABILITY.  THE PARTIES AGREE THAT LICENSOR SHALL NOT BE RESPONSIBLE TO CUSTOMER FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREMENT AND/OR INCURRED AS A RESULT OF ANY INTENDED OR UNINTENTED USES OF THE LICENSED PRODUCTS. IN ADDITION, LICENSOR SHALL NOT BE LIABLE FOR USE OF THE LICENSED PRODUCTS AGAINST (1) ANY INFORMATION TECHNOLOGY SYSTEM OR SYSTEM’S ENVIRONMENT WHICH IS SUBJECT TO FEDERAL REQUIREMENTS; OR (2) AGAINST ANY INFORMATION TECHNOLOGY SYSTEM WHICH IS CONSIDERED A “PRODUCTION” ENVIRONMENT (DEFINED AS AN INFORMATION TECHNOLOGY SYSTEM THAT IS USED BY LIVE END-USERS/CLIENTS AND PROVIDES FUNCTIONS NECESSARY TO THE OPERATION OF A BUSINESS); OR (3) AGAINST ANY INFORMATION TECHNOLOGY SYSTEM OR SYSTEM’S ENVIRONMENT WHICH IS RESPONSIBLE FOR FULFILLING REGULATORY REQUIREMENTS.  FURTHER, UNDER NO CIRCUMSTANCES SHALL LICENSOR’S TOTAL LIABILITY TO CUSTOMER IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT EXCEED THE REVENUES GENERATED BY LICENSOR UNDER THIS AGREEMENT IN THE THREE (3) MONTHS PRECEDING THE APPLICABLE CLAIM.

 


9. Software Activation
The Licensed Software leverages a 3rd Party Software Activation Service as one method of protecting its intellectual property. The activation service is provided by Softworkz Innovation Inc. (www.softworkz.com) (“Softworkz”).  
Software activation is an anti-piracy technology designed to verify that the product has been legitimately licensed in compliance with the software’s end-user license agreement. It reduces a form of piracy known as "casual copying," or the sharing of software between people in a way that violates the license agreement. Activation is a one-time completely anonymous procedure and requires no personally identifiable information from the end user.

Software activation works by validating that the software's activation ID, required as part of product installation, has not been used on more PCs than allowed by the software's end user license agreement.  Activation is completed directly via an internet data connection to the softworkz activation service or as an ‘offline’ activation via Licensor support.  Installations beyond those allowed in the license agreement will fail to activate.   Successful software activation creates a license key file which is stored on the local computer.
By executing this Agreement, Customer acknowledges and agrees to abide by the terms and conditions set forth on the Softworkz website.  Customer also understands and agrees that Licensor shall not be liable to Customer for any conduct or performance of Softworkz.  

 


10. Other Terms
10.1. Ownership of IP Rights: Licensor and its licensors own all right, title, and interest in all intellectual property in and related to the Licensed Products, Documentation, and design techniques. Customer has no ownership interest in any of the Licensed Products, Documentation, and design techniques, or any of Licensor’s intellectual property.   


10.2.  Entire Agreement.  This Agreement is the entire agreement between Licensor and Customer, and shall supersede any prior agreements, understandings, or discussions (written or oral).  The parties understand that all prior writings between them constitute non-binding terms, all of which are superseded by the terms of this Agreement.  Accordingly, the parties agree that their intent is best expressed by the terms residing within this written document.  


10.3. Export Controls: Customer agrees that the goods, software, and technology subject to this agreement are subject to the export control laws and regulations of the United States, including but not limited to the Export Administration Regulations ("EAR"), and sanctions regulations of the U.S. Department of Treasury, Office of Foreign Asset Controls and that Customer will comply with these laws and regulations. Without limiting the foregoing, if any technology, software or source code governed by this agreement, or the direct product of any such technology, software or source code (each is a "Controlled Product"), is subject to the national security controls as identified on the Commerce Control List (the "Controlled Products"), Customer will not, without a U.S. Bureau of Industry and Security license or license exception, export, re-export, or transfer a Controlled Product, either directly or indirectly, to any national of any country identified in Country Groups D:1 or E:1 as defined in the EARs. In addition, goods, software and any technology subject to this agreement may not be exported, re-exported, or transferred to (a) any person or entity listed on the "Entity List", "Denied Persons List" or the list of "Specifically Designated Nationals and Blocked Persons" as such lists are maintained by the U.S. Government, or (b) an end-user engaged in activities related to weapons of mass destruction. Such activities include but are not necessarily limited to activities related to: (i) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (ii) the design, development, production, or use of missiles or support of missiles projects; and (iii) the design, development, production, or use of chemical or biological weapons.


10.4. Governing Law; Jurisdiction: This Agreement is governed by the laws of the State of Minnesota, without regard to conflicts of laws principles.

10.5. Severability: If any provision in this agreement is found to be invalid or unenforceable as written, the remaining provisions will remain in full force and effect and the invalid or unenforceable provision is to be construed (and, if necessary, modified) so that it is valid and enforceable to the greatest extent possible.


10.6. Remedies: Except where this agreement expressly provides exclusive remedies, all rights and remedies of either party (including termination rights) are cumulative. Each party agrees that monetary damages alone would not be an adequate remedy, and therefore each party will be entitled to injunctive or other equitable relief if the other party materially breaches, as applicable, the license restrictions or confidentiality provisions in this agreement.


10.7. Force Majeure: In the event that either party is prevented from performing any of its non-monetary obligations under this Agreement due to any cause beyond its reasonable control, the affected party’s performance shall be excused and the time for performance shall be extended for the period of delay due to such occurrence, provided such party promptly notifies the other party and resumes performance as soon as practicable.


10.8. Construction: Section headings in this Agreement are for convenience only. The word "including" (and variations thereof) is not intended to be limiting. No rule of strict construction is to be used when interpreting this agreement.


10.9. Government Users: If Customer is a branch or agency of the United States Government, or are acquiring any Licensed Product on behalf of any branch or agency of the United States Government, then the following provision applies. The Licensed Products and Documentation are comprised of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 C.F.R. 12.212, and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.


10.10. Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party; such consent not to be unreasonably withheld or delayed, except that a party may, upon written notice to the other party, make an assignment of this Agreement and its rights and obligations under this Agreement to an Affiliate, to the purchaser of all or substantially all of the assets of such party or to its successor entity or acquirer in the event of a merger, consolidation or change in control of such party, without such written consent; provided that in the case of an assignment by Customer, Customer will remain liable for its obligations incurred under this Agreement prior to the date of such assignment, and in all cases, the assignee will assume in writing all obligations of the assignor under this Agreement. Any other purported assignment will be null and void.  All validly assigned rights and obligations of the parties under this Agreement will be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns of Customer or Licensor, as the case may be.