License Terms and Conditions
MileMaker® and IntelliRoute
Subject to the terms and conditions of this Agreement, MM grants to Licensee, the non-exclusive, non-transferable, revocable right: (i) to use the Software and Documentation for Licensee’s internal business operations; (ii) to reproduce the Documentation for Licensee’s own use (as long as there is no disclosure to third parties); and (iii) to interface the Software with Licensee’s operational and administrative software and process data from the Software for Licensee’s internal use only; (iv) to use commercially reasonable efforts to safeguard the Software and data and other information obtained from the Software, including all copies thereof, from infringement, misappropriation, theft, misuse, or unauthorized access and from all viruses, infections, worms, Trojan horses and other code that causes contamination or destruction; and (vi) to access and use Software in accordance with the requirements set forth in this Agreement and Documentation. The license set forth herein does not extend to affiliated entities of Licensee unless such entities are specifically identified on the Order Form.
EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY OR ITS REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, PROFIT, DATA, USE, OR BUSINESS INTERRUPTION IN CONNECTION WITH OR ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, THE EXISTENCE OF THE FURNISHING, FUNCTIONING OR USE OF ANY ITEM OF SOFTWARE OR SERVICES PROVIDED FOR IN THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT MM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MM’S OR LICENSEE’S MAXIMUM CUMULATIVE LIABILITY FOR DAMAGES OR LOSSES WHETHER ARISING OUT OF BREACH OF THIS AGREEMENT OR TORT (INCLUDING NEGLIGENCE) EXCEED THE TOTAL FEE PAID BY LICENSEE FOR THE LICENSE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO SUCH BREACH OR DURING THE FIRST 12 MONTHS THIS AGREEMENT IS IN EFFECT SHOULD A CLAIM ARISE DURING SUCH TIME.
“Confidential Information” includes for MM: the pricing in this Agreement and any information related to the Intellectual Property of MM, including, but not limited to, the Software, its Documentation, the Schedules, information, data, data sheets, benchmark tests, specifications, and any other proprietary information clearly marked as "confidential information” or reasonably understood as confidential under the circumstances; and for Licensee: all non-public Licensee information and all Licensee content and data generated from its use of the Software and/or the ancillary back-up/hosting of such content by MM and the fact that Licensee is a customer of MM. Each party acknowledges and agrees that they each may gain access to or become familiar with the other party’s Confidential Information. Confidential Information of either party will be used solely for the purpose of this Agreement and will not be directly or indirectly disclosed, by action or omission to any third party without the other party's prior written consent. Each party agrees to exercise at least the same degree of care as it would in protecting its own Confidential Information, but in no event less than a commercially reasonable degree of care from unauthorized use and disclosure. Each party agrees to limit disclosure of Confidential Information to only representatives, consultants, or agents who need to know in relation to this Agreement and are subject to confidentiality duties or obligations substantially similar to those in this Agreement. Confidential Information does not include information that the receiving party can show is (i) publicly available, (ii) obtained independently without violation of this Agreement, (iii) obtained from third parties without restrictions on disclosure, or (iv) required to be disclosed by applicable law, order of a court or other governmental entity. Issuance does not constitute general publication of the Software or any other Confidential Information.
Unless earlier terminated as provided herein, the initial term of this Agreement shall commence on the Effective Date and shall continue until the initial Term set forth on the Order Form expires, provided that if neither party gives notice to the other party of its intent not to renew the Agreement, the Agreement shall automatically renew for 12 months upon each anniversary of the end of the initial Term.
Licensee shall not sell, export, re-export, transfer, divert or otherwise dispose of the Software, the Documentation, or any data or other information contained in or derived from the Software directly or indirectly to any person, firm, entity, country or countries prohibited by U.S. or applicable non-U.S. laws. Further, Licensee shall give notice of the need to comply with such laws and regulations to any person, firm or entity which it has reason to believe is obtaining any such product, technical data, software or software source code from either party with the intention of exportation.
Licensee agrees to give MM access to Licensee’s software and assistance as may be necessary for MM to audit Licensee’s compliance with this Agreement. The audit shall be conducted at MM's expense. Any use other than that permitted will be assessed a fee, calculated with retroactive effect based on what would have been charged had the appropriate license fee been charged, and if undisputed, will be due and payable within 60 days of Licensee’s receipt of invoice. Any such fee assessed shall be at the rates shown herein and in addition to any and all rights MM may have against Licensee for such breach of this Agreement.