Please carefully read the Baytek Software Terms and Conditions (the “Agreement”). The right to use the Baytek Software is sold only on the condition that the Customer agrees to the following Agreement. Installation and use of the Baytek Software indicates your acceptance of this Agreement.
This Agreement is between BAYTEK LLC (herein called "BAYTEK") and the Customer relating to the Baytek Software Product (the “Software Product”) identified in an Order Form. For and in consideration of the fees paid by the Customer to BAYTEK, BAYTEK hereby grants to Customer a non-exclusive license to access and use the Software Product on the terms and conditions hereafter set forth.
- The Customer agrees not to sell, provide, give away, distribute, copy for distribution or otherwise make available to any third party, all or any part of the Software Product, including but not limited to object code, source code, program listings, disassembled code, and manuals. Without limiting the preceding sentence, Customer shall not, without Baytek’s prior written consent, make the Software Product available to a third party such as for the purpose of transferring data to another system, interfacing with another system, or any other purpose. Customer also agrees not to cause or permit the reverse engineering, disassembly or decompilation of the Software Product. Customer and its authorized users may access and use the Software Product solely for lawful and legitimate business purposes and not for the purpose of creating derivative works, competitive products, or any other purposes. Customer may make copies of source form or modified source form for back-up purposes only, if supplied with the Software Product. Customer will place the copyright notice of BAYTEK and any third party licensor holding interest in the Software Product on such back-up copies and maintain records, available at BAYTEK's request, of the location of each copy. The Software Product will be kept in a secure place. Customer will not provide access to Software Product by anyone other than those employees, contractors, subcontractors, affiliates or agents of the Customer who have a legitimate company interest in having access to Software Product. Any third party who is provided access to the Software Product by the Customer under the terms of this Agreement shall be bound by the terms of this Agreement. BAYTEK retains title to all BAYTEK Software Products. Customer recognizes that BAYTEK may and will license the Software Product to others.
- This license is nonexclusive, non-sublicensable and non-assignable. The Software Product shall be used solely on the computer system of Customer designated in the Order Form, and such computer system shall be located in the country noted in the Order Form. Customer agrees not to transmit the Software Product outside such country without the prior written consent of BAYTEK. The Software Product shall be used only at the licensed location(s) designated in the Order Form.
- The Software Product is purchased as a subscription for the period specified in the Order Form, and if no period is specified, the subscription period shall be one year. Following any such specified period, subscriptions will automatically renew for one-year periods until either party gives notice of non-renewal at least 90 days in advance of the next renewal period. Unless otherwise agreed in writing, from time to time, BAYTEK may change its fees. Customer will be notified at least 30 days in advance of any fee changes. Such changes will not affect the prices for the Software Product during the then-current subscription term and will become effective upon the next renewal term that commences at least 30 days after notification of the fee change.
- BAYTEK will invoice the Customer for fees as provided in the applicable Order Form. Unless otherwise provided in the Order Form, payment of invoices is due within 30 days of the date of BAYTEK’s invoice. Customer will pay all bank charges, taxes, duties, levies and other costs and commissions associated with other methods of invoicing and payment. Customer is responsible for providing complete and accurate billing and contact information to BAYTEK and providing any changes to such information. BAYTEK may immediately suspend licenses, use of any Software Product or service and performance of orders for which payment is overdue until the overdue amount is paid in full. Overdue payments will be subject to a late payment charge of the lesser of one and one half percent (1.5%) per month or the maximum rate allowed by applicable law. Customer will reimburse BAYTEK for reasonable attorneys’ fees and any other costs associated with collecting overdue payments. Unless Customer provides BAYTEK with a current tax exemption certificate, Customer is solely responsible for paying all legally required taxes, including without limitation any sales, excise or other taxes and fees which may be levied upon the sale, transfer of ownership, license, installation, or use of the Software Products, except for any income tax assessed upon BAYTEK.
- BAYTEK's sole warranty obligation shall be to make available to Customer bug fixes and any generally available updates made by BAYTEK to the Software Product which are published and made generally available during the subscription term, provided Customer has complied with this Agreement. BAYTEK MAKES NO OTHER WARRANTIES OF ANY KIND, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESSED OR IMPLIED (INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY AND WARRANTIES ARISING FROM COURSE OR DEALING OR USAGE OF TRADE), WITH RESPECT TO THE SOFTWARE PRODUCT. BAYTEK ALSO ACCEPTS NO LIABILITY FOR ANY DAMAGES WHATSOEVER, AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL DAMAGES, LOST PROFITS AND/OR FINES OR PENALTIES. CUSTOMER IS RESPONSIBLE FOR ALL OUTCOMES RELATED TO ITS USE OF THE SOFTWARE AND EXPRESSLY ASSUMES THE DUTY OF CONFIRMING BY OTHER, INDEPENDENT MEANS ANY AND ALL RESULTS OBTAINED FROM USE OF THE SOFTWARE PRIOR TO RELYING ON SUCH RESULTS.
- MAINTENANCE & MODIFICATIONS. BAYTEK will provide standard maintenance service for the Software Product during the term of the subscription period. BAYTEK may charge for hardware, system upgrades and related services. If modifications to the Software Program are made by Customer, then BAYTEK shall have the right to use of such Customer modifications without payment of any fee whatsoever by BAYTEK; and BAYTEK shall have the right to license others to use such Customer modifications without payment of any fee to Customer.
- In no event will BAYTEK or any of its employees, agents, owners, affiliates, shareholders, or directors be held liable for any loss, expense, or damage of any kind, whatsoever, direct or indirect, including as a result of BAYTEK's negligence or negligence of any third party, in excess of the amounts paid by Customer for the affected Software Product in the three-month period preceding any claim. Neither BAYTEK nor any of its employees, agents, owners, affiliates, shareholders, or directors shall be liable for any incidental damages, consequential damages, and/or lost profits arising out of or connected in any manner with the Software Product or this Agreement.
- Either party may terminate this Agreement by written notice to the other party effective immediately upon receipt, if the other party fails to cure any material breach of this Agreement within a sixty (60) day period after having received a written notice from the non-breaching party detailing the breach and requesting the breach be cured. Upon termination of this Agreement, Customer will promptly cease use and return all copies of any parts of the Software Product. The terms of this Agreement which, by their nature, are intended to survive termination will so survive. ANY DATA CUSTOMER ENTERS INTO THE SOFTWARE PRODUCT, AND ANY CUSTOMIZATIONS MADE TO THE SOFTWARE PRODUCT BY OR FOR CUSTOMER, WILL BE PERMANENTLY LOST UNLESS CUSTOMER EITHER CONTINUES TO PURCHASE A SUBSCRIPTION TO THE SOFTWARE PRODUCT OR EXPORTS SUCH DATA BEFORE THE END OF THE SUBSCRIPTION TERM.
- Customer agrees that this Agreement shall inure to the benefit of any third party holding any right, title, or interest in the Software Product licensed hereunder or any software from which it was derived, and such third party may directly enforce the terms of this Agreement. The Software Product supplied to the Customer includes proprietary trade secrets owned by BAYTEK or a third party and are provided to the Customer solely by a license and not by a sale thereof to Customer. BAYTEK and any third party holding any interest in the Software Product will continue to own their respective interests in the Software Product and will be entitled to their return upon any failure by the Customer to perform according to the terms and conditions of this Agreement.
- BAYTEK will, at its own expense, defend Customer in any suit, claim or proceeding brought by a third party against the Customer alleging that the Software Product infringes a U.S. patent, copyright or trade secret; provided, however that Customer (a) promptly notifies BAYTEK in writing of such suit, claim or proceeding, (b) gives BAYTEK full information and assistance required to defend such suit, claim or proceeding, and (c) allows BAYTEK, at BAYTEK's expense, to direct the defense. Further, BAYTEK will pay any judgment based on such infringement rendered in such suit by final judgment of a court of last resort; provided that BAYTEK shall have no liability (a) for settlements or costs incurred without its consent; and (b) to indemnify Customer in any suit, claim, or proceeding brought against the Customer in which and to the extent the alleged infringement arises from any modification of the software as originally supplied by BAYTEK or arises from the use of non-licensed software with the licensed software and the claim for such infringement would have been avoided if such modification or non-licensed software has not been used. If the Customer's use of the licensed software is enjoined, or in the event that BAYTEK desires to minimize its liabilities hereunder, BAYTEK will, at its option, either substitute other equally suitable software, modify the licensed software so that it no longer infringes or obtain for the Customer the right to continue its use for the remainder of the term.
- Neither party will knowingly disparage, criticize, or otherwise make any derogatory statements regarding the other party, including, but not limited to, in reviews or social media, and in the parties’ respective official statements, will not and will instruct the members of their respective boards and executive officers not to knowingly disparage, criticize, or otherwise make derogatory statements regarding the other party. The foregoing will not be deemed to restrict a party or any of a party’s current or former officers and/or directors from providing information to any governmental or regulatory agency (or in any way limit the content of any such information) to the extent they are requested or required to provide such information pursuant to applicable law or regulation.
- This Agreement is governed by Texas law. Any controversy or claim arising out of or relating to the Software Product provided under this Agreement, or any breach thereof, will be settled by arbitration to be held in Corpus Cristi, Texas in accordance with the commercial arbitration Rules of the American Arbitration Association (for contracts entered into in the United States) or the International Chamber of Commerce (for contracts outside the United States). Any award rendered by the arbitrator(s) may include costs against either party and may be entered into a court of competent jurisdiction for enforcement, but under no circumstances are the arbitrator(s) authorized or empowered to award special, punitive or multiple damages against either party.
- The Software Product has been developed at private expense and is licensed subject to RESTRICTED RIGHTS as “commercial items” and are deemed to be “commercial computer software” and “commercial computer software documentation.” Any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.