REALTRAC HOLDINGS, LLC. “REALTRAC HOLDINGS” MASTER

SOFTWARE LICENSE AGREEMENT

 

This Master Software License Agreement (“Agreement“) is entered into between Realtrac Holdings, LLC., a Michigan Corporation with principal offices located at 32971 Capitol St., Livonia, MI 48150 (“Realtrac Holdings“), and Licensee (“Licensee“), and effective with the date of installation or use of the software.

 

RECITALS

Realtrac Holdings owns and licenses proprietary software which is sold under the name “Realtrac,” (Software). Realtrac Holdings and Licensee desire to enter into this agreement under which Licensee and its affiliates will acquire the right to use the Software.

 

AGREEMENT

NOW, THEREFORE, in consideration of the agreements, conditions and covenants set forth below, the parties agree as follows:

 

1. Definitions

As used in this Agreement, the following terms shall have the following meanings:

“Code” means all computer programming code (including Object Code and Source Code) unless otherwise specified, as modified or enhanced from time to time.

“Documentation” means user guides, manuals, bulletins and product literature supplied by Realtrac Holdings concerning installation, operation, and use of the Software.

“Object Code” means the executable, binary and/or byte code form of Code that is contained in a medium that permits it to be loaded into and executed on a computer system, but which is not generally readable by humans without reverse assembly, reverse compiling, or reverse engineering.

“Source Code” means the human readable version of a software program that requires compilation or other manipulations before it can be executed by a computer and all corresponding source documentation, including application programming interface specifications, release notes, database structure, database architecture and build procedures.

 

2. Licenses

A. Realtrac Holdings hereby grants to Licensee one perpetual, worldwide, non-transferable (except as provided in Section 7(B) below), non-exclusive license to install and use the Software for Licensee’s internal business purposes in accordance with the restrictions set forth in the Documentation and for purposes consistent with this Agreement.

 

B. Restrictions

 

(1) No Reverse Engineering. Except as expressly permitted by this Agreement or the Documentation, Licensee shall not alter, modify or adapt the Software in any way including decompiling, disassembling, reverse engineering or creating derivative works from or otherwise attempting to discover or derive the Source Code of the Software.

 

(2) Limited Copies. Licensee may not use more than the number of copies that it has licensed, but Licensee may make a reasonable number of copies of the Software for emergency, archival or backup purposes; provided that, any copies are subject to the terms of this Agreement. Except as expressly provided in this Agreement, Licensee shall not copy, relocate, move, sublicense, rent, timeshare, act as a service bureau, loan and lease or otherwise distribute the Software or Documentation.

 

(3) Notices. Licensee shall (a) respect all confidentiality notices or legends placed upon the Licensed Materials; (b) not conceal from view or remove any copyright, trademark or confidentiality notices placed on the Licensed Materials; and (c) reproduce all copyright, trademark or confidentiality notices on (i) all copies or modules of the Software, and (ii) all copies of or excerpts from the Documentation made by Licensee as permitted hereunder.

 

(4) Export Restrictions. The Licensed Materials and related technical data and services (collectively “Controlled Technology”) may be subject to the import and export laws of the United States and other countries, including the U.S. Export Administration Regulations (“EAR”), and the laws of any country where Controlled Technology is imported or re-exported. Licensee agrees that it will comply with all relevant laws and will not export licensed materials without permission from Realtrac Holdings.

 

C. License Extensions

Unless the parties agree otherwise in a writing signed by both parties, all License Extensions shall be deemed to be amendments of this Agreement.

 

D. Licensee Obligations

 

(1) Technical Requirements. Unless otherwise specified, Licensee shall provide, operate and maintain the proper operating environment necessary to operate the Software.

 

(2) Telecommunications. Licensee also shall provide all necessary transmission capacity, telecommunications and Internet connectivity, if any, to properly operate and provide for the maintenance of the Software at Licensee’s facilities or for use of the product in the cloud environment.

 

(3) Backup of Data. Licensee shall be responsible for appropriate backup of its data at all times.

 

(4) Access to Data and Database. Realtrac provides tools and utilities in order to facilitate the import and export of data from the Realtrac Performance ERP system. These tools are supported and maintained by Realtrac in order to allow our customers to extend the product and integrate it with other software systems they may use. It is technically possible for customers to directly access the Realtrac database. This data access method is not supported or endorsed by Realtrac. Manually manipulating data via the database can lead to data loss and system corruption, including a total failure of your Realtrac Performance ERP system and the permanent destruction of all data. Any direct manipulation of the Realtrac Performance ERP database is not supported. Support work resulting from the manipulation of the database by the customer or any representative of the customer is not covered under the Realtrac support agreement. Realtrac reserves the right to charge the customer at the billable support rate in force at the time support is needed to correct the problem, billed in 1 hour increments with a 4 hours minimum, for any and all support work that is found to be required due to the direct manipulation of the Realtrac Performance ERP System database. It is often not possible to immediately determine that the failures or support services required are due to such manipulations. As such, as soon as the Realtrac technician or employee identifies that the support work is due to such direct database manipulations, the Realtrac representative will immediately cease work. A Realtrac representative will get in touch with the main customer contact on file and inform them of our findings, and an agreement for continued support to supplement the Realtrac support contract will be required before additional support work can continue.

 

E. Invoicing and Payment Terms

Licensee shall pay Realtrac Holdings for any and all fees, costs and/or other amounts identified in any and all invoices for the Software and/or Software-related items (Invoice) within fifteen (15) days of the Invoice date unless otherwise agreed. Invoice fees and/or costs may include, but are not limited to, license fees, support service charges, technical services charges, automatic payments, service line fees, and/or any other fees and costs related to the Software and/or Software-related products and services.

 

F. Intellectual Property Rights

 

(1) Reservation. Excepting the specific license granted this section 2, Realtrac Holdings retains all right, title and interest in and to the Software and Documentation, modifications thereto, all related materials and all intellectual property rights therein. Nothing contained in this Agreement shall be deemed to grant to Licensee, either directly or by implication, estoppel, or otherwise, any other right, interest or license to or under any intellectual property rights of Realtrac Holdings. Licensee shall not take any action that jeopardizes, limits or interferes with Realtrac Holdings’s ownership of and rights with respect to the Software and/or Documentation.

 

(2) Modifications. Realtrac Holdings shall retain all right, title and interest to any Object Code, Source Code, or other materials that constitute a derivative work of the Software and/or Documentation.

 

G. Representations, Warranties and Disclaimers

 

(1) Realtrac Holdings Performance Warranties. THE SOFTWARE IS BEING PROVIDED TO LICENSEE ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, CONDITIONS, CLAIMS OR REPRESENTATIONS MADE BY REALTRAC HOLDINGS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE OR DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, IMPLIED CONDITIONS OR WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

 

(2) Licensee’s Representations and Warranties. Licensee represents and warrants to Realtrac Holdings that: (a) Licensee has full power and authority to enter into and perform this Agreement; (b) the execution and delivery of this Agreement has been duly authorized; and (c) this Agreement does not violate any law or breach any other Agreement to which Licensee is a party or is bound.

 

H. Limitation of Liability

 

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUE, LOST DATA, REPLACEMENT GOODS, OR INTERRUPTION OF USE OF THE SOFTWARE, WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. NOTHING CONTAINED IN THIS SECTION 2(H) SHALL BE CONSTRUED TO MODIFY LICENSEE’S OBLIGATION TO PAY ANY AND ALL FEES DUE AND OWING UNDER THIS AGREEMENT OR ANY INVOICE, AS DEFINED HEREIN.

 

I. Term and Termination

 

(1) Term. This Agreement will continue in full force and effect until terminated by either party as provided by this Agreement. Either party may terminate this Agreement at any time upon ten (10) days prior written notice. Realtrac Holdings may also terminate this agreement at any time for non-payment of amounts due under any Invoice as set forth in section 2(E) above.

 

(2) Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted herein shall terminate within ten (10) days of termination or expiration; (b) the parties will return, or certify the destruction of, all materials, provided by the other party to such party, including the Software, Documentation and any and all information which has been designated as confidential, as well as any copies thereof or excerpts there from; and (c) any fees that have accrued prior to the termination or expiration of the Agreement will be payable in full within thirty (30) days of the effective date of termination or expiration. Sections 1, 2(B)(1), 2(B)(2), 2(F), 2(G), 2(H), and 2(J)(3) will survive termination of this Agreement:

 

J. General Provisions

 

(1) No Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto, and nothing in this Agreement will be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement

 

(2) Assignment. Licensee may not sell, transfer, assign or otherwise dispose of any of its rights or obligations under this Agreement to any other person, without the express written consent of Realtrac Holdings, except that Licensee retains the unrestricted right to transfer and assign its interest in this Agreement, in whole or in part, to any entity: (a) acquiring all or substantially all of its assets or stock, or (b) surviving a merger with or resulting from a reorganization of Licensee. This Agreement will be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns

 

(3) Trial Period. Licensee agrees that all provisions of this agreement shall also apply to any “trial period” or “promotional offer” which has been provided by Realtrac Holdings.

 

(4) Injunctive Relief. It is understood and agreed by each of the parties that a breach of the provisions of this Agreement by the other party may cause irreparable damage for which recovery of monetary damages would be inadequate and that the non-breaching party may seek injunctive relief or other equitable relief to protect its Confidential Information, intellectual property rights and other rights under this Agreement, in addition to any and all remedies available at law.

 

(5) Governing Law; Venue. The parties agree that this Agreement will be governed by the laws of the United States and the State of Michigan without regard to its conflicts of laws principles. For resolution of any disputes arising out of this Agreement, the parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Oakland County, Michigan.

 

(6) Severability. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction, (a) the remaining terms and provisions of this Agreement will be unimpaired, and (b) the invalid term or provision will be replaced by such valid term or provision as comes closest to the intention underlying the invalid term or provision.

 

(7) No Waiver; Amendments. Except as set forth in section 2(C), this Agreement may not be amended or waived except by a written instrument executed by a duly authorized representative of both parties. A valid waiver is limited to the specific situation for which it was given.

 

(8) No Agency; Independent Contractors. Neither party shall, for any purpose, be deemed to be an agent of the other party. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.

 

(9) Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which shall be deemed to constitute one and the same agreement. This Agreement may be executed electronically.

 

(10) Force Majeure. Neither party shall be responsible for delays or failure of performance resulting from acts beyond the reasonable control of such party. Such acts shall include, but not be limited to, acts of God, strikes, walkouts, riots, acts of war, terrorism, epidemics, failure of suppliers to perform, governmental regulations, power failures, floods, earthquakes, or other disasters.

 

(11) Entire Agreement. This Agreement, together with any License Extension, attachments, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede in all respects all prior or contemporaneous proposals, negotiations, conversations, discussions and agreements between the parties concerning the Software and/or Documentation, including any click wrap agreements accompanying such materials. This license agreement is valid without Licensor or Licensee signature and is effective upon installation or use of the software.