CGC Software Subscription Agreement
PLEASE READ THIS AGREEMENT CAREFULLY. CUSTOMER AGREES TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREES THAT THIS AGREEMENT IS ENFORCEABLE AS IF IT HAD BEEN SIGNED. THIS AGREEMENT SUPERSEDES ANY PRIOR ORAL OR WRITTEN PROMISE, REPRESENTATION, OR WRITTEN AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER CONTAINED IN THIS AGREEMENT. THIS AGREEMENT REQUIRES CUSTOMER TO TRADE IN ALL CGC PERPETUAL SOFTWARE LICENSING IN EXCHANGE FOR A SOFTWARE SUBSCRIPTION FOR THE SAME SOFTWARE. CGC WILL ALSO PROVIDE CUSTOMER 10% OFF ON FUTURE PURCHASES OF CGC PRODUCTS & SERVICES.
This CGC Software Subscription Agreement (the “Agreement”) is entered into by and between Computer Guidance Corporation (“CGC”), an Arizona corporation, and Customer, upon the execution of a related online agreement, purchase agreement or by any other acceptable method by which Customer agreed to the terms of the Agreement.
I. CGC Software Subscription.
CGC hereby grants Customer a limited, non-exclusive and non-transferable license, for all software and documentation provided by CGC (collectively, the “Software”) for the number of users (the “User Licenses”) and for the period (the “Subscription Period”) for which annual support or subscription fees (the “Annual Fee”) have been paid.
II. Term of Agreement.
The Subscription Period will coincide with the Customer’s current Annual Fee renewal date and shall automatically renew for additional one-year terms (a “Renewal Term”) unless either party provides written notice to the other not less than 30 days prior to the end of the Term or any subsequent Renewal Term of its intent not to renew this Agreement (the Initial Term and any Renewal Terms, collectively, the “Term”). At the end of each year of the Term, Customer agrees that the Annual Fee will increase for the upcoming year of the Term by an amount equal to any increase in the Consumer Price Index-United States City Average-All Urban Consumers-All items published by the U.S. Dept. of Labor Bureau of Labor Statistics (the CPI) as of such date over the CPI in effect one year prior to such date.
III. Software Support.
Maintenance and support for the current versions of the Software are included with the Annual Fee. CGC may be unable to support its Software if the Customer fails to install the updates provided by CGC or any updates provided by IBM for the IBM iSeries licensed programs.
IV. Terms of Payment and Termination.
Customer will pay CGC the Annual Fee for the Term in order to use the Software. This Agreement will remain in effect unless it is terminated by Customer either by a) providing 30 days prior written notice before the end of the Term of Customer’s intent not to renew the Software subscription or b) not paying the Annual Fee for a Subscription Period. If Customer elects not to pay the Annual Fee by the due date, and following a 45 day grace period, Customer agrees CGC may disable the Software, either by operation of the Software or by a remote command. Upon termination of this Agreement, CGC shall have no obligation to provide any further Software, service or support to Customer and Customer must cease use of the Software and destroy all copies of the Software.
V. Non-Solicitation of Employees.
Customer acknowledges and agrees that CGC personnel have been acquired and trained by CGC at considerable expense. Customer, therefore, agrees that if Customer, or any affiliate of Customer, (including any company that is under common ownership and/or control of Customer) should employ any CGC employee, or any employee of an affiliate of CGC (in any capacity, including any rendering of personal services as an employee, contractor, or agent),within one year after such employee’s leaving of CGC or CGC’s affiliates, then Customer agrees to pay CGC a placement fee of 100% of the former employee’s projected first year earning (including projected bonuses and commissions) from Customer. Customer acknowledges and agrees that CGC will not provide any support or services to or through this former employee for a period of 24 months from the date the former employee terminated from CGC or an affiliate of CGC. Additionally, Customer agrees to pay CGC the placement fee in one lump sum within 15 days of demand.
All notices by either party to the other shall be in writing.
Any disputes arising hereunder including the construction or application of the Agreement shall be settled by arbitration in Phoenix, Arizona, in accordance with the Commercial Industry Rules of the American Arbitration Association. The decision of the arbitrator shall be final and binding upon the parties both as to law and to fact, and shall be enforceable in any court of record having jurisdiction.