Software License Terms

These Software License Terms (these “License Terms”) apply to each Software and Support Order (each “Order”) by and between Lyris Technologies, Inc. (“Lyris”) and the customer identified in such Order (the “Customer”). As such, these License Terms shall be deemed incorporated into each Order and any reference to “Order” in these License Terms shall be deemed to include these License Terms.

  1. 1.Lyris Software.
    1. 1.1Procedure for Licensing Lyris Software. Lyris will make its proprietary Software that is set forth in the Order available to Customer pursuant to the terms and conditions stated in the Order. If Customer desires to order additional Software from Lyris, the parties will prepare and sign an additional Order that describes the Software to be licensed and applicable pricing terms.
    2. 1.2License Grant. As of the Effective Date set forth in the Order, Lyris hereby grants to Customer a non-exclusive, non-transferable, and perpetual license to use the Software described in the Order. Each such license grant permits Customer to install and use the Software on 1 of Customer’s servers only and for Customer’s internal business use only. Lyris reserves all rights not expressly granted to Customer pursuant to the Order.
    3. 1.3Delivery. The Software will be delivered via the Lyris website at www.lyris.com, and any applicable or required Serial Number(s) (defined in Section 10.3 below) will be delivered via email as soon as practicable following the Effective Date of the applicable Order. All Software delivered by Lyris will be deemed accepted upon Lyris’s delivery of the Serial Number(s) (the “Delivery Date”). Except pursuant to the Support Services that Customer shall receive pursuant to the Order, Lyris shall have no obligation to provide subsequent releases of the Software to Customer following the Delivery Date.
    4. 1.4Delivery of Service. If the Order expressly permits Customer to deliver the Software as a service to its clients, Customer may offer to its clients (a “Client”) a limited term, non-transferable, non-exclusive, revocable license to use the service with the functionality and features of the Software pursuant to these License Terms (the “Service”). If Lyris has not approved Customer’s use of the Service for the benefit of any Client in accordance with the procedures in Section 1.5, then Lyris may immediately suspend Customer’s use of the Software and any Service on behalf of such Client. Where Lyris has approved of Customer’s delivery of the Service to a Client, Customer shall ensure that such provision of Service is subject to the rights of Lyris as provided in the applicable Order and Customer shall be fully responsible for any breach of the provisions of the Order that may be caused by such Client. In such case, Customer shall remain primarily liable for the performance of Customer’s and each Client’s obligations under the applicable Order. Before Customer offers the Services to a Client, Customer will have an enforceable agreement in place with the Client which includes terms at least as protective as the following: (i) Client is granted a limited term, non-sublicensable, non-transferable, and non-exclusive right to access the Service solely for Client’s internal business purposes; (ii) a statement that Lyris has no liability to Client and Client disclaims all representations and warranties by Lyris to such Client, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose; (iii) there is no grant or transfer of any ownership, license or intellectual property rights of any kind to any Client or third party; and (iv) a liability limitation which extends to Clients of Customer in (a) limiting liability for direct damages to a reasonable amount, and (b) disclaiming liability for consequential, punitive, incidental, and other indirect damages (including, but not limited to, lost profits, lost or damaged data, and the provision of substitute goods). Customer will enforce each such agreement with at least the same degree of diligence that Customer uses to enforce similar agreements for its own products or services, but in no event less than reasonable efforts. Customer will immediately notify Lyris if Customer becomes aware of any breach of any such agreement relating to the Service or Software. Upon request by Lyris, Customer shall produce copies of all documents required for a Client hereunder.
  2. 2.Warranty and Disclaimer.
    1. 2.1Thirty (30) Day Warranty. Lyris warrants that the Software shall for a period of 30 days following the Delivery Date operate substantially in conformance with its product specifications and/or documentation provided to Customer by Lyris. If any breach of the foregoing warranty occurs within said 30 day period, then Customer shall stop using the Software and shall notify Lyris in writing of the problem. During the 30 day period following Lyris’s receipt of such notice, Lyris shall use commercially reasonable efforts to repair the Software. If Lyris is unable to repair the Software during said 30 day period, then Lyris shall replace the Software. The warranty provided in this Section 2.1 shall not apply if the Software has been modified by Customer. Except pursuant to the Support Services that Customer shall receive pursuant to the Order, the remedy provided in this Section 2.1 shall comprise Customer’s sole and exclusive remedy for defective Software.
    2. 2.2Disclaimer. EXCEPT FOR THE WARRANTY PROVIDED IN SECTION 2.1, THE SOFTWARE IS PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND. LYRIS HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. FURTHER, LYRIS DOES NOT WARRANT THAT THE SOFTWARE WILL PERFORM UNINTERRUPTED OR ERROR-FREE.
  3. 3.Fees, Payment, Taxes and Audit Rights.
    1. 3.1Fees. Customer shall pay to Lyris the License Fees and Support Fees set forth in the Order. Said License Fees are non-refundable.
    2. 3.2Payment. Except as otherwise provided in the Order, Customer’s payments of fees are due upon receipt of the date of the applicable invoice. All payments will be made in U.S. dollars. All fees that are not paid when due shall be subject to late charges of the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount or (ii) the maximum permitted under applicable law. If Lyris has not received any payment within said 30 day period, then Lyris may also suspend Customer's access to the applicable Support Service(s) upon no less than five (5) days prior, written notice to Customer until payment is made. Any suspension of Support Services pursuant to this Section 3.2 will not relieve Customer of its obligation to pay all amounts due.
    3. 3.3Taxes. The fees set forth in each Order are exclusive of any applicable sales, use, excise and similar taxes. Lyris will bill, and Customer will pay, the amount of any such taxes assessed on the Software and Support Services (excluding any tax related to the net income of Lyris). If Customer is tax exempt, then Customer will provide Lyris with a copy of its tax exemption certificate on or before execution of the applicable Order. Customer agrees to reimburse Lyris for any tax, as well as any interest and penalties thereon, levied against Lyris for the provision of Software or Support Services to Customer pursuant to an Order.
    4. 3.4Audit Rights. Lyris reserves the right to conduct an audit of Customer’s records and/or systems in order to assure that Customer is in compliance with its payment obligations (Section 3) and prohibited uses (Section 4).
  4. 4.Proprietary Rights and Prohibited Uses.
    1. 4.1Proprietary Rights. As between Lyris and Customer, Lyris owns all right, title and interest in and to the Software (including without limitation any updates, modifications, and/or enhancements thereto) and all intellectual property rights therein. Customer agrees not to remove any notices of Lyris’ copyright, trademark and other proprietary notices contained on or in the Software.
    2. 4.2Prohibited Uses. Customer shall not: (i) use more than one installation or copy of the Software on any one computer at any one time; (ii) modify, translate, reverse engineer, decompile, disassemble or create derivative works based upon the Software; (iii) rent, transfer, license, use as a service bureau, or grant any rights in the Software or accompanying documentation in any form to third party without the prior written consent of Lyris; (iv) remove any proprietary notices, labels or trademarks on the Software and accompanying documentation; (v) use the Software to (a) send unsolicited commercial or non-commercial e-mail (“spam”) or otherwise violate applicable law; or (b) forge any packet header or any part of the header information in any e-mail or otherwise attempt to hide or obscure the source of e-mail sent through use of this Software; (vi) use the Software to (a) interfere with service to any user of any network or computer by any means including, among other, any virus, “denial of service” attack or overloading, “flooding,” “spamming,” “mail-bombing,” or ”crashing” a network or website; or (b) probe, scan or test the vulnerability of a system or network or breach security or authentication measures without prior written approval from Lyris. Notwithstanding the foregoing, any plug-ins, add-ons or derivative works to the Software shall not be made by Customer without the prior written approval of Lyris.
  5. 5.Limitation of Liability.
    1. 5.1Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST DATA (OR ITS USE), OR LOSS OF USE OF THE SOFTWARE), HOWEVER CAUSED AND REGARDLESS OF THE FORM OF ACTION. LYRIS’ MAXIMUM AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR DAMAGES RELATED TO AN ORDER SHALL NOT EXCEED THE AGGREGATE AMOUNT OF THE LICENSE AND SUPPORT FEES PAID BY CUSTOMER PURSUANT TO SUCH ORDER.
    2. 5.2Exceptions: The provisions of Section 5.1 shall not apply to any claims involving (i) use by Customer of the Software which is outside of the scope of the License granted in the Order, (ii) breach by Customer of any term in Section 4 (“Proprietary Rights and Prohibited Uses”) and Section 8 (“Confidential Information”), or (iii) claims under Section 6 (“Indemnification”), or (IV) either party’s willful misconduct.
  6. 6.Indemnification.
    1. 6.1Lyris Indemnity. Lyris agrees to defend, indemnify, and hold Customer and its officers, directors, employees, and agents harmless from and against damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees) and settlement amounts incurred in connection with any suit, claim or action by any third party (a “Claim”) alleging that the Software, when used within the scope of the Order, infringes any patent enforceable in the United States, copyright, trademark, or service mark of a third party.. In addition to the foregoing, if the Software is, or in the opinion of Lyris may become, the subject of any claim for infringement or if the Software is adjudicatively determined to be infringing, then Lyris may, at its sole option and expense (i) modify the Software so that such Software becomes non-infringing; (ii) replace the Software with non-infringing software that is functionally equivalent or (iii) obtain a license for Customer to continue to use the Software provided hereunder. If (i), (ii), and/or (iii) are not practicable, then either party may terminate the applicable Order(s) and license(s) granted therein and Lyris shall provide Customer with a refund of prepaid fees for Support Services that were to be provided following the effective date of termination. This Section 6.1 states Lyris’s entire obligation and Customer’s sole and exclusive remedies regarding the intellectual property rights of any third party. The foregoing obligations shall not extend to any Claims of infringement arising from or related to: (a) Customer’s use of Software that is not the most current, commercially available version; (b) a modification of the Software by anyone other than Lyris; or (c) a combination of the Software with any other software if the Software would not have infringed but for such combination.
    2. 6.2Customer Indemnity. Customer agrees to defend, indemnify and hold Lyris and its officers, directors, employees, and agents harmless from and against any and all damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees) and settlement amounts incurred in connection with any Claim arising out of or relating to Customer’s conduct or use of the Software, as applicable, except to the extent that the occurrence giving rise to such Claim is found to have been caused by an infringement within the scope of Lyris’ indemnity set forth in Section 6.1. (“Lyris Indemnity”).
    3. 6.3Procedures. Each indemnifying party’s obligations as set forth in this Section 6 are subject to the other party: (i) giving the indemnifying party prompt written notice of any such Claim; (ii) giving the indemnifying party sole control over the defense and settlement of any such Claim; and (iii) providing full cooperation for the defense of any such Claim, at the indemnifying party’s expense.
  7. 7.Term and Termination.
    1. 7.1Term. The term of each Software license shall commence upon the applicable Delivery Date and continue in perpetuity, unless earlier terminated pursuant to Section 7.2 (“Termination”). The term of each Support Services engagement (the “Initial Support Term”) shall commence upon the applicable Delivery Date and continue as defined in the Software Support Terms. The term of each Comprehensive Support Services engagement shall thereafter automatically renew for successive and consecutive periods of duration equal to the Initial Support Term, (each such period, a “Renewal Support Term”) unless it is terminated by either party (effective as of the end of the then-current Initial Support Term or Renewal Support Term only) at least 30 days prior to the end of the then-current Initial Support Term or Renewal Support Term.
    2. 7.2Termination. Lyris may immediately terminate any Software License and/or Support Services engagement for cause by written notice to Customer if Customer materially breaches any provision of the applicable Order and such breach or failure is not remedied within thirty (30) days following Customer’s receipt of written notice thereof.
    3. 7.3Effect of Termination. Within thirty (30) days of termination of Software License, Customer shall erase, destroy or return to Lyris all copies of the Software. Upon Lyris’ request, an authorized executive of Customer shall provide a written certification that warrants compliance with this Section 7.3.
  8. 8.Confidential Information. Each party may have access to and may become acquainted with various information and other property of the other party, including but not limited to reports, drawings, schematics, prototypes, models, devices or inventions (whether or not patented or patentable, copyrighted or copyrightable), financial information, business plans, marketing information, sales plans, cost information, customer information, price lists, and intellectual property (e.g., the Software, which shall be deemed Lyris’s Confidential Information), all of which are owned by such other party and/or are regularly used in the operation of such other party’s business (hereinafter “Confidential Information”). Confidential Information includes information that is conspicuously marked “Confidential,” “Proprietary,” or the like and/or information that the receiving party should reasonably understand as being confidential or proprietary to the disclosing party. Confidential Information does not include any information that the receiving party can reasonable demonstrate (i) is generally available to the public, (ii) was in the rightful possession or known by the receiving party prior to receipt from the disclosing party, (iii) was rightfully disclosed to the receiving party by a third party, or (iv) was independently developed without use of any Confidential Information of the disclosing party. The obligations set forth in this Section 8 shall not apply to the extent that the other party’s Confidential Information is required to be disclosed by law or valid order of a court or other governmental authority; provided that the responding party agrees to deliver reasonable notice to the other party and use commercially reasonable efforts to cooperate with such other party’s attempt to obtain a protective order. Each party shall use the other party’s Confidential Information only in connection with the performance of its obligations and exercise of its rights as described in an Order. Neither party shall disclose the other party’s Confidential Information to any third party, except to its subcontractors, agents, attorneys, and advisors who have a need to receive it and who have written or ethical obligations that serve to protect it in a manner no less restrictively than as set forth herein. Each party will use the same degree of care that it uses with respect to its own Confidential Information (but in no event less than reasonable care) to maintain in confidence except as permitted herein, any Confidential Information of the other party.
  9. 9.General. Each Order is governed in all respects by the laws of the State of California without giving effect to its conflict of laws principles. The jurisdiction and venue for all disputes hereunder shall be the state and federal courts located in San Francisco, California. Lyris’s relationship with Customer is that of an independent contractor, and nothing herein is intended, or should be construed, to create a partnership, agency, joint venture or employment relationship. The prevailing party shall be entitled to attorneys’ fees and its litigation or related expenses in any suit or proceeding with respect to the subject matter of an Order or arising from or related to it, or to interpret or enforce the Order. All notices permitted or required under an Order shall be in writing and shall be by personal delivery, facsimile transmission, electronic mail, overnight courier, or US mail, and deemed received upon personal delivery, acknowledgment of receipt of facsimile transmission, when sent upon email transmission, the promised delivery date after deposit with overnight courier, or five (5) days after deposit in the US mail. Notices shall be sent to the person who has signed the Order (at the address set forth therein) or to such other person or address as either party may specify in writing. Each party shall deem a document faxed to it as an original document. If any provision of an Order is unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render the Order unenforceable or invalid as a whole. In such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decisions. Provisions that should reasonably be considered to survive termination of an Order shall survive. The failure of either party to require performance by the other party of any provision of an Order shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision of an Order be taken or held to be a waiver of the provision itself. Neither party shall be liable under an Order by reason of any failure or delay in the performance of its obligations under such Order (except for the payment of money) on account of any cause beyond the reasonable control of such party. Neither party may assign, voluntarily, by operation of law or otherwise, any rights or obligations under an Order without the other party’s prior written consent, which may not be unreasonably withheld; provided that either party may without such consent assign an Order to any person or entity controlling, controlled by or controlled in conjunction with such party or to any person or entity that acquires substantially all of the shares, assets, or business of such party. Any attempt to do so without such consent will be void. Subject to the foregoing, each Order will bind and inure to the benefit of the parties and their respective successors and permitted assigns. Each Order completely and exclusively states the agreement of the parties regarding its subject matter. Each Order supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding its subject matter. No Order shall be modified except by a subsequently dated written amendment signed on behalf of each party by its duly authorized representatives, and any provision on a purchase order purporting to supplement or vary the provisions hereof shall be void.
  10. 10.Definitions.
    1. 10.1“Serial Number” means the password or other code that allows Customer to activate Software.