IMPLICIT SOFTWARE LICENSE AGREEMENT
Last Revised: April 13, 2018 - Version 8.0
THIS AGREEMENT (THE "AGREEMENT") GOVERNS THE TERMS AND CONDITIONS OF YOUR USE OF CERTAIN SOFTWARE DESCRIBED BELOW, AND IS MADE BETWEEN YOU ("YOU" OR "YOUR"), AND IMPLICIT, INC. ("IMPLICIT", "WE", OR "US"). BY CLICKING "I AGREE" BELOW, YOU ARE CONFIRMING THAT YOU UNDERSTAND THIS AGREEMENT, AND THAT YOU ACCEPT ALL OF ITS TERMS AND CONDITIONS. IF YOU ARE NOT THE END USER AND ARE INSTALLING THIS SOFTWARE ON BEHALF OF THE END USER, YOU WARRANT AND REPRESENT THAT YOU ARE AUTHORIZED TO ACT ON BEHALF OF THE END USER AND TO ACCEPT AND BIND THE END USER TO THE TERMS OF THIS AGREEMENT. IF YOU ARE USING THE SOFTWARE IN CONNECTION WITH THE BUSINESS OF A COMPANY OR OTHER LEGAL ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE COMPANY OR OTHER ENTITY TO THIS AGREEMENT, THE TERMS "YOU" AND "LICENSEE" BELOW MEAN THE ENTITY YOU WORK FOR, AND THE COMPANY OR OTHER LEGAL ENTITY IS PARTY TO THIS AGREEMENT. IF YOU DON'T HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN CLICK ON THE "I DO NOT AGREE" BUTTON BELOW AND NEITHER YOU NOR THE COMPANY OR ENTITY YOU WORK FOR WILL BE LICENSED TO USE THE SOFTWARE.
a. "Implicit Software" means the Executable Code version of our Implicit FrontEnd proprietary software application that provides Integration between Microsoft Outlook or Exchange and SugarCRM, SuiteCRM or Salesforce. The specific edition of Implicit FrontEnd is specified on the associated Order Form. Implicit Software includes Documentation, and all improvements, modifications, additions, replacements or extensions of such software that Implicit may make available at its sole discretion from time to time.
b. "Effective Date" is the earlier of the date that You either click "I Agree" to the terms and conditions of this Agreement, or that You first place an order for Implicit Software.
c. "Documentation" means any manuals, documentation and other supporting materials related to the Implicit Software.
d. "License Term" means one (1) year from the Effective Date of the Agreement.
e. "License Fees" means the fees You are required to pay Implicit to use the Implicit Software during the applicable License Term.
f. "License Key" means a software-based key required to access and operate the Implicit Software during the License Term, which is monitored and regulated by Implicit through the Implicit Licensing Server.
g. "Seats" mean the number of User accounts for the Implicit Software that You are authorized to use. The number of Seats is specified on the Order Form.
h. A "User" is a single person that uses the Implicit Software and/or interacts with the implicit Software in the performance of its functions. The number of Users shouldn't exceed the number of Seats You have licensed under this Agreement. A user is identified by email address and CRM user ID.
i. "Implicit Licensing Server" is an online server used by Implicit to monitor and regulate Implicit Software Licenses.
j. "Seat License" means one license for the Implicit Software associated with one Seat.
k. "CRM User Account" means one account that the User is using to log in to the CRM. CRM User Account is identified by a user ID (the "CRM User ID").
l. "Order Form" is the form associated with this agreement, where You specify the name and address of the legal entity that You represent, provide Your information and select the edition of the Implicit Software and the number of Seats.
m. "Executable Code" means the fully compiled version of a software program that can be executed by a computer and used by an end user without further compilation.
n. "Source Code" means the human-readable version of a software program that can be compiled into Executable Code.
o. "Software Update" is a Software release that Implicit makes available at its sole discretion from time to time along with any corresponding changes to Documentation. A Software Update may include new functionality, patches or bug fixes designed to repair problems existing in the then-current version of the Implicit Software.
2. License Grant. Subject to Your compliance with the terms of this Agreement (including, among other things, payment of License Fees), Implicit hereby grants You a non-exclusive, non-transferable, limited-term license to install, execute, and use the Implicit Software for Your internal business purposes during the applicable License Term, in accordance with the Documentation, and only for the number of Seats that You have paid for. You can make copies of the Software for backup purposes only, provided that You reproduce all copyright and other proprietary notices that are on the original copy of the Implicit Software. Your employees and contractors can use the Implicit Software, so long as they're using it on Your behalf, and provided that You agree to be fully responsible for their compliance to the terms and conditions of this Agreement.
3. Restrictions. You acknowledge that the Implicit Software and its structure, organization, and Source Code constitute valuable trade secrets of Implicit and its suppliers. Accordingly, You agree not to, nor permit nor authorize any third party to: (i) sublicense, sell, rent, lease, transfer, assign, or distribute the Implicit Software to third parties; (ii) host the Implicit Software for the benefit of third parties; (iii) use the Implicit Software in any service bureau or time-sharing arrangement; (iv) disclose or permit any third party to access the Implicit Software, except as expressly permitted in Section 2, above; (v) hack or modify the License Key, or try to avoid or change any license registration process; (vi) modify, alter, translate or create derivative works of the Implicit Software, or merge the Implicit Software with other software; (vii) disassemble, decompile, bypass any code obfuscation, or otherwise reverse engineer the Implicit Software or attempt to derive any of its source code, in whole or in part, except to the extent such activities are expressly permitted by law or applicable license notwithstanding this prohibition; (viii) modify, obscure, or delete any proprietary rights notices included in or on the Implicit Software or Documentation; (ix) use Implicit Software beyond its applicable License Term;(x) build a product or service competitive with the Implicit Software; (xi) build a product or service using similar ideas, features, functions or graphics of the Implicit Software; (xii) copy any ideas, features, functions or graphics of the Implicit Software; (xiii) otherwise use or copy the Implicit Software in a manner not expressly permitted by this Agreement. Implicit reserves all rights not expressly granted under this Agreement.
4. Implicit Software Licensing, Activation and Updates.
4.1 Users and Seats Licenses. Only one User can use a Seat at a time. Multiple Users aren't allowed to use the same Seat, and only one human being can be associated with a particular User account. Each Seat License is identified by the combination of a User email address and a CRM User ID. Each unique combination of User's email address and CRM User ID constitutes one Seat License. If the same User activates the Implicit Software on multiple email accounts with multiple email addresses, then multiple Seat Licenses will be required. If a User is using multiple CRM accounts, then each CRM User Account will require one license.
4.2 Seat License Activation. Implicit employs technological measures in the Implicit Software that are designed to prevent unlicensed or illegal use of the Implicit Software. You agree that Implicit may use these measures to protect itself against software piracy and track and enforce the number of Seat Licenses that You activate vs. the number of Seats that you purchased. When You initially load the Implicit Software on any of your email accounts, or when You clear and restart Your Implicit Software configuration, You may be required to provide a License Key to allow Implicit to activate your License over the Internet by communicating with the Implicit Licensing Server in order to verify the authenticity of the Software and to register your Seat License and associate it with your email address and CRM User Account. You agree not to block, electronically or otherwise, this communication with Implicit Licensing Server. Any attempt to block the activation of the License Key is considered to be violation of this Agreement and will result in immediate termination of this Agreement, pursuant to Section 10 (Term and Termination).
4.3 Seat License Release. When you uninstall the Implicit Software, Your Seat License will be automatically released. In the event, that you leave the Licensee company or that You no longer require an Implicit Software License, Your Seat License can also be manually released by either Your CRM administrator or by Implicit Support staff so that the Seat License can be used by another User.
4.4 Software Updates. You acknowledge and agree that the Implicit Software may download and install new updates and versions of the Implicit Software as they are made available by Implicit in its sole discretion. You agree to receive and permit Implicit to deliver such new updates and versions to Your computer. Additionally, Implicit may modify the terms and conditions that apply to Your use of the Implicit Software to reflect such updates and versions and You agree to such updated terms. Unless You have otherwise affirmatively agreed to such changes, by continuing to use the Implicit Software after the modifications become effective, You agree to be bound by the revised terms.
4.5 Adding and Renewing Licenses. If and when You choose to add additional Seats to Your license, You will pay License Fees for those seats at the then-current price, prorated for the remaining balance of the applicable License Term. Prior to expiration of the applicable License Term, if You choose to renew Your Seats for another year-long License Term, Implicit will invoice You for all of Your Seats at once, at the then-current price. Implicit reserves the right to change its prices at any time, but the new prices won't affect You until it's time to renew Your license for another year. You agree that any orders that You place for additional Seats during any applicable License Term will be governed by this Agreement.
4.6 Implicit Licensing Server Availability. The Implicit Software is provided "as is" and "as available" and Implicit will not be responsible to pay You for any loss or damage resulting from any downtime of the Implicit Licensing Server due to reasonable scheduled maintenance, maintenance for critical issues or forces beyond the reasonable control of Implicit.
6. Payments You agree to pay the License Fees to Implicit upon execution of this Agreement and upon annual renewal of each License Term. All payments must be made in U.S. dollars. The License Fees exclude all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges, and You will be responsible for payment of all such taxes (other than taxes based on Implicit's income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the License Fees or the delivery or license of implicit Software to You. You agree to make all payments of the License Fees to Implicit free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of the License Fees to Implicit will be Your sole responsibility. Any portion of the License Fees that is not paid when due will accrue interest at 1.0% per month or the highest interest rate allowed by law, whichever is less, and to additionally charge all expenses of recovery.
7. Delivery. Implicit will deliver to You within fifteen (15) days after execution of this Agreement one copy of the Implicit Software, Documentation and License Key. The copy of the Implicit Software, Documentation and License Key will be deemed accepted upon delivery.
8. Support. Subject to Your compliance with the terms of this Agreement (including, among other things, payment of License Fees), Implicit will provide You with technical support for the Implicit Software. We currently offer support only via email (firstname.lastname@example.org). Implicit will only support its then-current version of the Implicit Software and the immediately preceding version. For issues with older versions of the Implicit Software, You will be required to upgrade to the latest version of the Implicit Software. Implicit will make reasonable efforts to correct any material, reproducible errors in the Implicit Software that You report to us. You may be asked to help us in reproducing the error and providing trace information. Implicit will not be responsible for support in those circumstances, which include, among other things: (i) changing Your operating environment in a way that adversely affects the Software or its performance; (ii) using the Software in a manner for which it was not designed, or other than as authorized under this Agreement; or (iv) negligence, or misuse of the Software.
9. Ownership Rights. The Implicit Software is protected by United States patent and copyright laws and international treaty provisions. Implicit and its suppliers own and retain all rights, title and interest in and to the Implicit Software, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. Your possession, installation, or use of the Implicit Software does not transfer to You any title to the intellectual property in the Implicit Software, and You will not acquire any rights to the Implicit Software except the limited right to use it as expressly set forth in this Agreement.
10. Term and Termination.
10.1 Term. This Agreement starts on the Effective Date and will continue in effect for one (1) year (the "Initial License Term"), at which time, if You choose to renew Your Implicit Software license for additional License Terms, this Agreement will automatically continue in effect for additional one (1) year terms (each, a "Renewal License Term") until this Agreement is either terminated by a party or expires in accordance with this Section 10. Implicit will notify You at least thirty (30) days before the end of the Initial License Term and each Renewal License Term that it's time for You to renew Your implicit Software license.
10.2 Automatic Expiration. This Agreement will automatically expire without the requirement of notice if, at the end of the Initial License Term or any Renewal License Term, the License Fees required to renew Your Seats for an additional License Term are not paid.
10.3 Termination for Convenience. Either party can terminate this Agreement for convenience at the end of the Initial License Term or any Renewal License Term by providing written notice to the other party at least thirty (30) days before the end of the Initial License Term or any Renewal License Term.
10.4 Termination for Breach. Implicit can terminate this Agreement immediately upon notice to You if You breach any part of it, and You fail to cure the breach within thirty (30) days of notice. Implicit reserves the right to terminate this Agreement immediately upon written notice to You, but without giving You a cure period, if You breach any of the terms of this Agreement relating to Ownership Rights (Section 9) or Your compliance with the license grant and any license restrictions(Sections 2 and 3).
10.5 Effect of Termination. When this Agreement terminates or expires: (i) all licensed rights granted in this Agreement will immediately cease to exist, and You must promptly discontinue all further use of the Implicit Software; (iii) any amounts owed to Implicit under this Agreement before such termination or expiration will be immediately due and payable; (iv) You will destroy all copies of the Software in Your possession or control, and certify in writing to Implicit that You have done so. Sections 1, 3, 6, 9, 10.2, 10.3, 10.4, 10.5, 11.3, 12, 13, and 14 will survive the termination or expiration of this Agreement for any reason.
11. LIMITED WARRANTY; DISCLAIMER.
11.1 Warranty. Each of the parties represents and warrants that it has full corporate power and authority to enter into and to perform its obligations under the Agreement.
11.2 Performance Warranty. For a period of sixty (60) days after the Effective Date (the "Software Warranty Period"), Implicit warrants that the Implicit Software, when used as permitted under this Agreement and in accordance with the instructions in the Documentation (including use on a computer hardware and operating system platform supported by Implicit), will operate substantially as described in the Documentation. Implicit will, at its own expense and as its sole obligation and Your exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error in the Implicit Software that You report to Implicit in writing during the Software Warranty Period or, if Implicit determines that it is unable to correct the error, Implicit will refund You all License Fees actually paid, in which case this Agreement and Your right to use the Implicit Software will be terminated. Any such error correction, and any Software Update provided to You will not extend the original Software Warranty Period.
11.3 Disclaimer of Warranty. THE EXPRESS WARRANTIES IN THIS SECTION 11 ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, CONDITION, INTERFERENCE WITH YOUR QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 11, THE LICENSED SOFTWARE IS PROVIDED "AS IS" WITH ALL FAULTS AND YOU ACKNOWLEDAGE AND AGREE TO ACCEPT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, ACCURACY AND EFFORT. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED ON ANY ORAL OR WRITTEN INFORMATION OR ADVICE, WHETHER GIVEN BY IMPLICIT, ITS SUPPLIERS, DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES. IMPLICIT DOES NOT WARRANT THAT YOUR USE OF THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED.
12. LIMITATION OF LIABILITY. IN NO EVENT WILL IMPLICIT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR KIND WHATSOEVER, OR FOR LOSS OF DATA, LOSS OF PROFITS OR OTHER ECONOMIC LOSS, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR DELIVERING, INSTALLING, FURNISHING, MAINTAINING, SUPPORTING OR USING THE SOFTWARE, EVEN IF IMPLICIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IMPLICIT'S TOTAL LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL BE LIMITED TO THE FEES ACTUALLY PAID IMPLICIT DURING THE 12 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT SUCH FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT IMPLICIT WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.YOU FURTHER AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 12 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
13. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law principles. Exclusive jurisdiction and venue for any legal action will be the state courts of Santa Clara County, California, and the federal courts of the Northern District of California. Notwithstanding the foregoing, Implicit may seek relief in any court of competent jurisdiction to protect or enforce its intellectual property rights. The United Nations Convention on Contracts for the International Sale of Goods, and the Uniform Computer Information Transactions Act (as enacted) do not apply to this Agreement.
14.1 Assignment. You may not assign or transfer any of Your rights or obligations in this Agreement, in whole or in part, by operation of law or otherwise, without Implicit's prior written consent, and any attempt by You to do so will be null and void. Implicit can assign this Agreement in its entirety, upon notice to You but without the requirement to obtain consent, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our business or assets.
14.2 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, You agree that Section 12 (Limitation of Liability) will remain in effect notwithstanding the unenforceability of any provision in Section 11 (Warranties).
14.3 Notices. Notices will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To Implicit, Inc., 1159 Sonora Court, Suite #305, Sunnyvale, CA 94086, USA
To You: your address as provided in the Order Form. We may give electronic notices to you by email to your e-mail address or by telephone calls to the telephone numbers as provided in the Order Form.
14.4 Waiver. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.5 U.S. Government Users. No technical data or computer software is developed under this Agreement. The Implicit Software and Documentation have been developed solely with private funds, and are considered "Commercial Computer Software" and "Commercial Computer Software Documentation" as described in FAR 12.212, FAR 27.405-3, and DFARS 227.7202-3, and are licensed to the to the U.S. Government end user as restricted computer software and limited rights data. Any use, disclosure, modification, distribution, or reproduction of the Software or Documentation by the U.S. Government or its contractors is subject to the restrictions set forth in this Agreement.
14.6 Export Controls. You acknowledge that all or portions of the Implicit Software may be subject to the export control laws of the United States and/or other jurisdictions of the world. You agree not to export, re-export or otherwise transfer any portion of the Implicit Software in violation of any applicable export law or regulation.
14.7 Force Majeure. Implicit will be excused from it's obligations under this Agreement to the extent that it is unable to perform due to extraordinary causes beyond its reasonable control. That might include things like acts of God, acts of war, riots, strikes, lockouts, epidemics, internet failures, and power failures.
14.8 Independent Contractors. You and Implicit are independent contractors with respect to the subject matter of this Agreement. Nothing contained in this Agreement will be deemed or construed in any manner whatsoever to create a partnership, joint venture, employment, agency, fiduciary, or other similar relationship between us, and neither of us can bind the other contractually.
14.9 Entire Agreement. Implicit may modify its Terms of Service that apply to Your use of the Implicit Software. By continuing to use the Implicit Software after the modifications become effective, You agree to be bound by the revised terms.
14.10 Entire Agreement. This Agreement, constitutes the entire agreement and understanding of the parties with respect to its subject matter, and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties with respect to its subject matter. No modifications, changes, or amendments of this Agreement will be binding upon the parties, unless both parties agree to the changes in a writing signed by each of the authorized representatives.