Read Write Digital, LLC
Software License Agreement
This Software License Agreement (the “Agreement”) is made between Read Write Digital, LLC (“Read Write Digital) and you, to govern the your acquisition and use of our software and services.
- “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- “Software” includes products and related services described on one or more “Order Confirmations” which reference this Agreement. The Software is hosted by Read Write Digital and provided as a service through the Internet.
- “Documentation” means online help and/or user documentation provided by Read Write Digital for use with the Software. Read Write Digital may amend or add to the Documentation from time to time.
- “Order Confirmation” means a form provided by Read Write Digital, and signed by You and Read Write Digital, that defines the products and related services to be provided by Read Write Digital along with related prices.
- “You” or “Your” or “Licensee” means the legal entity (company, government agency, school, school district, institution, non-profit, etc.) for which you are accepting this Agreement and any Affiliates of that legal entity.
- Non-Exclusive License and Ownership
- During the term of this Agreement, Read Write Digital grants Licensee a nonexclusive, limited license to use the Software as itemized and for the Organization(s) specified in one or more related Order Confirmation(s) (individually an “Organization” and collectively the “Organizations”). Licensee may not use the Software for any other purpose or Organization without first receiving written permission from Read Write Digital and paying an additional license fees as required. Your license and right to use the Software ends upon the termination of this Agreement. The policies stated in Section 6 of this Agreement shall apply with regard to new version releases and upgrades to the Software.
- Licensee acknowledges that Read Write Digital retains all right, title, and interest in the Software and the Documentation. Licensee shall not sublicense, rent, lease, decompile, disassemble, create derivative works, or otherwise distribute the Software.
- Licensee acknowledges that the following constitute confidential and proprietary information of Read Write Digital: (i) the structure, design, code, and functionality of the Software and of the network and hardware that support it; (ii) the Documentation; (iii) the business processes used by Read Write Digital, and any printed or electronic materials provided to Licensee by Read Write Digital, in the performance of its services under this Agreement or the Order Confirmation; and (iv) this Software License Agreement and all related Order Confirmations. Licensee agrees that it will not disclose, transfer, duplicate or reproduce, or permit any Licensee representative, contractor, employee, or agent of the Licensee, to disclose, transfer, duplicate, or reproduce, any such information in any manner except as authorized in writing by Read Write Digital or otherwise required by Law.
- Copyright, ownership, warranties, and other applicable usage terms for any third party software integrated with the Software shall be as provided for by the software manufacturer and are not modified or expanded by this Agreement.
- Licensee agrees that Read Write Digital may include Licensee Organization names and logos in lists of users of the Software that are included on Read Write Digital’s Web site and in print and electronic marketing communications.
- Licensee is responsible for all information or other materials (collectively the “Content”) contained in or processed by the Software sites for the Organizations (the “Software Sites”). Read Write Digital will have no obligation to review, edit, alter, or add to the Content at any time beyond those content changes for which the Software is designed to perform. Licensee grants Read Write Digital a non-exclusive, royalty-free, worldwide license to (a) reproduce, distribute, display and digitally perform the Content as part of the Software Sites, as appropriate and (b) use Licensee’s and Organization’s trademarks, service marks, and logos (collectively the “Marks”) in connection with the Software Sites to the extent necessary to comply with this Agreement.
- Read Write Digital acknowledges that the data and content submitted to the Software sites for Licensee’s Organization(s) and any and all Licensee and Organization trademarks, service marks, and logos (collectively the “Marks”) are the exclusive property of Licensee or the Organization; that it has no ownership or proprietary rights in such data, content, or the Marks; and shall have no rights to use such data, content, or the Marks except as expressly provided in this Agreement.
- Read Write Digital will maintain as confidential any content, user information, or data residing in or processed by the Software sites. Read Write Digital shall use such information only as necessary for the proper exercise of Read Write Digital’s duties and obligations under this Agreement.
- Licensee acknowledges that in providing and supporting the Software for the Organization, Read Write Digital will capture certain data, including data related to: usage, trends, outcomes, attainment of goals, performance, engagement, peer comparisons, conditions, characteristics, preferences, classifications, predictions and other analytics, and that Read Write Digital will be entitled to create and distribute aggregate statistical and database compilations derived from the data (including, but not limited to the aforementioned types of data) provided that such aggregate compilations do not identify individuals within the dataset.
- Technical Support
3.1 Technical Support. Read Write Digital will provide technical support to Licensee to the following extent:
3.1.1 Read Write Digital shall correct reproducible material defects or material errors (collectively “Material Errors”) within the Software. Errors will be considered “Material Errors” if they represent nonconformity with the specifications contained in the Documentation and such nonconformity adversely affects the functionality of the Software. Read Write Digital is not obligated to fix errors or defects that are not material. Read Write Digital does not warrant or guarantee that the Software will run or otherwise operate without interruption or be error free.
3.1.2 The obligation of Read Write Digital to correct Material Errors identified by either Read Write Digital or Licensee shall be limited to commercially reasonable efforts to design, code, and implement programming changes to the Software. Licensee shall report all Material Errors in writing with sufficient detail for Read Write Digital to understand the Material Error(s) and the circumstances under which it occurred. In the event that Read Write Digital is unable after reasonable opportunity (not to exceed ninety (90) business days from the date Read Write Digital receives written notice of the Material Errors) to modify the Software or provide a usable work-around solution, Licensee shall be entitled, as its exclusive remedy, to terminate the Agreement with respect only to each affected Organization and receive a pro rata refund of any monies it has paid Read Write Digital for services to be delivered to each affected Organization after the termination date.
3.1.3 Read Write Digital shall have no obligation to provide technical support with respect to the Software if it is modified or altered in any material respect by Licensee. Licensee will pay Read Write Digital, at Read Write Digital’s then current rates, for efforts spent by Read Write Digital investigating an error or malfunction that Read Write Digital reasonably determines to have been caused by a modification to the Software not made or authorized in writing by Read Write Digital.
3.1.4 Other limitations to Read Write Digital’s obligations for technical support may apply as detailed in any related Order Confirmations.
4.1 Read Write Digital warrants that the Software will operate in substantial conformity with the specifications included in the Order Confirmation and the Documentation. Provided, however, that if Licensee discovers Material Errors in the Software, Licensee’s exclusive remedy will be as specified in Section 3.1.2 of this Agreement. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, PERFORMANCE, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH OTHER WARRANTIES ARE HEREBY DISCLAIMED. Read Write Digital will under no circumstances be liable to Licensee for any damages, whether based on contract, tort, warranty, or other legal or equitable grounds, including any loss of profits, lost savings, or other incidental or consequential damages arising out of Licensee’s use or inability to use the Software, even if Read Write Digital or an authorized representative of Read Write Digital has been advised of the possibility of such damage. Read Write Digital shall have no liability for defects in or failures of the Software or any applicable programming, media, or associated documentation that result from Licensee’s or another party’s misuse, abuse, alterations, or repairs (not performed by Read Write Digital), negligence or intentional acts.
4.2 Read Write Digital warrants that it owns or otherwise has the right to license the Software and Documentation to Licensee under this Agreement. Read Write Digital agrees to indemnify and hold harmless Licensee, its employees, officers, agents, and directors, against any and all claims, actions, proceedings, expenses, or damages arising out of, or in connection with, any claim that the normal use of the Software by Licensee, as permitted hereunder, infringes any copyright, patent, trade secret, or other intellectual property right of a third party. Licensee will give Read Write Digital prompt notice of any claim for which it is seeking indemnification, and will allow Read Write Digital to control the defense and settlement of such claim. Provided, however, that if the normal operation, possession, or use of the Software by Licensee is found to infringe a third party U.S. intellectual property right or Read Write Digital believes that the Software is likely to do so, Read Write Digital shall, at its sole expense and option, either (i) obtain a license from such third party for benefit of Licensee; (ii) replace or modify the Software so that it is no longer infringing; or (iii) immediately terminate this Agreement by providing written notice to Licensee, in which case Read Write Digital shall refund all fees paid by Licensee pursuant to this Agreement during the six-month period prior to termination and the provisions of Section 5.1 shall apply. This Section 4.2 states Read Write Digital’s entire obligation regarding infringement of third party rights or the like.
4.3 Licensee warrants to Read Write Digital that the data, information or other materials (collectively the “Content”) contained in and/or processed by the Software sites for the Organization(s) do not infringe any copyright or other intellectual property rights of any person, are not libelous, or do not otherwise violate the rights of, or cause damage to, any person or entity, or constitute a violation of any law, to the best of its knowledge. Licensee agrees to indemnify and hold harmless Read Write Digital, its employees, officers, agents, and directors, against any and all claims, actions, proceedings, expenses, or damages arising out of, or in connection with, any claim arising out of the Content. Read Write Digital will give Licensee prompt notice of any claim for which it is seeking indemnification, and will allow Licensee to control the defense and settlement of such claim.
- Term and Termination
5.1 The starting and ending dates of this Agreement are defined in the Order Confirmation(s). Upon termination of this Agreement, Read Write Digital shall have no further obligation to Licensee under this Agreement except as set forth in Sections 2.8, 4.1 and 4.2.
5.2 Early Termination Rights. The Agreement is subject to early termination upon any of the following events:
5.2.1 Bankruptcy and Insolvency. The filing by or against the other party in any forum or jurisdiction of any petition, voluntary or involuntary, for relief in a court in bankruptcy for either adjudication of bankruptcy or for a reorganization or rearrangement under the bankruptcy laws, or an action for receivership of any nature, or for an assignment for the benefit of such party’s creditors; or
5.2.2 Dissolution. The dissolution other than by merger or consolidation of the other party for any reason where such party or successor shall not continue, without interruption, its business affairs; or
5.2.3 Material Breach. Either party may terminate this Agreement by providing thirty (30) days’ written notice to the other party of a breach of any material term of this License Agreement by such other party, provided that such breach is not cured within thirty (30) days of such notice.
5.2.4 Non-Payment. Read Write Digital may suspend or terminate this Agreement and Licensee’s usage of, and access to, the Software if Licensee’s account becomes delinquent (falls into arrears). Licensee will continue to be charged for the services specified in the Order Confirmation during any period of suspension.
- Product Release Policy
6.1 Read Write Digital may make incremental improvements to The Software that maintain or improve system performance or that offer new features and functionality.
6.2 As part of the overall product design, many of the enhancements are automatically enabled when they are released in a new version. Read Write Digital does not charge additional usage or license fees for version enhancements. Some new features or functions, however, can only be configured based on Organization-specific requirements. Licensees requesting implementation of these optional configuration settings will be charged for actual configuration time at the contracted professional services rate.
6.3 Custom Features in Licensee Systems. Some Licensees may have features or functions that are custom designed and built for their particular Software site that were not part of the standard site configuration at the time the site was created. When these sites are migrated from one version to a successor version, there may be additional costs involved in moving the legacy custom features. These costs will be billed at the contracted professional services rate and may recur when future versions of the application are introduced. In the event that a previously custom feature becomes standard in a future release, there will be no charge for moving the feature.
6.4 Read Write Digital may elect to integrate third-party applications into The Software. If such applications offer non-standard functionality or employ additional data integration technologies, Read Write Digital may require additional license, usage, or professional services fees. In this case, Licensees will have the option to decline use of the new functionality that utilizes the third-party software and avoid the related charges.
7.1 Entire Agreement. This Agreement, together with its appendices and the Order Confirmation, represents the entire agreement between Read Write Digital and Licensee with respect to the subject matter contained herein, and supersedes and replaces any and all prior agreements, representations, and understandings, whether oral or in writing. No inference or presumption shall be drawn from the fact that either party hereto prepared any portion or all of this Agreement and this Agreement shall be construed in all respects as if prepared by both parties.
7.2 Conflict. If any part of this Agreement conflicts with a part of a related Order Confirmation, the terms and conditions of the related Order Confirmation will supersede the same terms and conditions of this Agreement. All other terms and conditions of this agreement will apply.
7.3 Governing Law. This Agreement shall be construed under, and the performance governed by, the laws of the Commonwealth of Virginia as they apply to contracts made and performed in that state. Any action arising under this Agreement shall be brought in the Circuit Court of the city of Richmond, Virginia, or where the claim arises under federal law, in the United States District Court for the Eastern District of Virginia.
7.4 Severability. In the event any portion of this Agreement is deemed unenforceable for any reason by court or other authority of competent jurisdiction, the remainder of the Agreement shall be fully enforceable, unless the unenforceable term goes to the heart of the Agreement between the parties.
7.5 Modification. This Agreement may not be modified or amended in any way unless by conflicting term in a related Order Confirmation or otherwise executed in writing by each of the parties on or after the date hereof.
7.6 Notice. Notice shall be provided in writing by facsimile, US Mail, or express delivery service for overnight delivery to the other party at the respective addresses initially set forth in Order Confirmation(s) or such other addresses as the parties may designate through the provision of notice herein. Notice is effective upon receipt of the facsimile, US Mail, or express or overnight delivery.
7.7 Waiver. Neither termination of this Agreement nor waiver of any right to terminate under this Agreement shall impair or limit any additional rights or remedies that either party may have at law or in equity. No waiver shall be effective against any party unless that party has assented to the waiver in writing.