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Software License Agreement

PLEASE READ THIS LICENSE CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, PROMPTLY RETURN AND/OR DESTROY THE SOFTWARE.

H2A Environmental, Ltd. a Texas Limited Partnership, with a mailing address of 1862 Keller Parkway, Keller, Texas 76248 (“Licensor”), hereby grants to the person using the software named below (the “Licensee”), and the Licensee hereby accepts, a personal, non-exclusive, non-transferable license to use for internal purposes the proprietary computer software products and Documentation specified below (collectively, the “Software”). Such license is governed by, and subject to all the Terms and Conditions of this Software License Agreement (the “Agreement”).

Software
Licensor will furnish one (1) copy of Licensor’s proprietary TRRP Commander INPUT™ software version 1.01 to Licensee in machine-readable object code form. The Software as defined herein, will include the data base application (including data base tables) to be installed on each User’s computer, and the Documentation.

Effective Date
The Effective Date of this Agreement and the license granted hereunder is the date the software is installed on Licensee’s computer.

Term of License
The initial term of this Agreement and the license granted hereunder is: Perpetual

License Fee
License Fee: $ No Charge

Number of Users
Maximum number of concurrent users who may access the Software (each, a “User”): No limit on the number of users. Number of CPUs licensed for installation of the Software: No limit on the number of CPUs.

Terms and Conditions

Section 1.

Definitions. For purposes of this Agreement:

    (i) “Server” means a single central processing unit (“CPU”) that enables other CPUs electronically-linked to the Server to access data and software;

    (ii) “Computer” means a single CPU that is not used as a Server for any other CPUs; (iii) “Documentation” means all printed documentation, including manuals covering the installation, application, and use of the Software, any published specifications and any “on-line” or electronic media;

    (iv) “Network” means a group of CPUs electronically-linked to a Server and capable of accessing data and software by means of that Server;

    (v) “Update” shall mean and be limited to a revised version of the Software containing corrections of defects and other updates or modifications of the Software that Licensor provides to its customers that have entered into a maintenance agreement with Licensor; and

    (vi) “User” shall mean an individual who accesses the Software.

Section 2.

Grant of License.

Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee: (a) a personal, non-exclusive, non-transferable license (without the right to sublicense) to use the Software, in machine-readable object code form, on Licensee’s Server and/or Computers solely for Licensee’s internal business purposes. Licensor shall provide Licensee the Software in machine-readable object code form, solely for Licensee’s use pursuant to this Agreement. Except as provided in Section 9(b) below, Licensee shall not have the right to receive, access or use the source code of the Software.

Section 3.

Covenants of Licensee.

During the term of this Agreement: Licensee shall adopt and enforce such internal policies, procedures and monitoring mechanisms as are necessary to ensure that the Software is used only in accordance with the terms of this Agreement. Licensee shall not:

    (i) assign, sublicense, lease, or encumber the Software or any portion thereof, other than in accordance with Section 15 hereof;

    (ii) modify, translate, reverse engineer, decompile or disassemble the Software, other than to the extent Licensor is required by law to permit Licensee to do so;

    (iii) possess or use the Software or any portion thereof, other than in machine-readable object code form; or

    (iv) remove any copyright, trademark, patent or other proprietary notices from the Software or any portion thereof.

Section 4.

Intellectual Property and Confidentiality.

    (a) Licensee acknowledges and agrees that Licensor or its licensors, if any, have and will retain after termination of this Agreement all right, title, interest and ownership in and to the Software and any copies or updates of the Software. Licensee acknowledges that the Software constitutes proprietary information and trade secrets of Licensor and its licensors, whether or not any portion thereof is or may be the subject of a valid copyright or patent. Licensee further agrees, at the reasonable request of Licensor, to execute and assign any and all applications, including without limitation, copyright applications, any and all assignments, and any other instruments that Licensor deems necessary to protect or maintain its rights in the Software.

    (b) The Software and any Documentation contains proprietary information, including trade secrets, know-how and confidential information, that belong to Licensor, and such Software and related proprietary information is being made available to Licensee in strict confidence. During the period this Agreement is in effect and at all times after its termination, Licensee and its employees and agents will maintain the confidentiality of this information and not sell, license, publish, display, distribute, disclose or otherwise make available this information to any third party nor use such information concerning the Software, including, without limitation, any flow charts, logic diagrams, user manuals and screens, to any third party without the prior written consent of Licensor.

Section 5.

License Fee.

As consideration for the license granted to Licensee hereunder, Licensee shall pay to Licensor upon execution of this Agreement, the one-time License Fee set forth on the first page of this Agreement. Licensee shall pay all sales, use and other taxes (excluding taxes on Licensor’s income) imposed by any jurisdiction arising out of or related to the license granted under this Agreement or to Licensee’s use of the Software, regardless of when such tax liability is asserted.

Section 6.

Installation and Conversion of Data; Training.

    (a) Except as otherwise agreed between the parties hereto, Licensee shall be solely responsible for installation of the Software. Licensee shall be solely responsible for any conversion of data required in connection with Licensee’s use of the Software to make such data compatible with the Software. Licensee may purchase installation services and support from Licensor at the rates set forth on Exhibit A attached hereto, as amended from time to time.

    (b) Licensee shall be responsible for all technical orientation and training of all Users. Notwithstanding the foregoing, Licensor agrees to provide training to Users at Licensor rates current at the time of training or as otherwise agreed in writing between Licensor and Licensee.

Section 7.

Maintenance and Support Services.

Licensor shall provide thirty (30) days of support services to Licensee at no cost. Such support shall be available via e-mail at an address to be provided by Licensor. In addition, Licensor shall provide additional support services and Updates to Licensee upon Licensee’s written request and only pursuant to Licensor’s policies and programs described in the user manual, and/or other Documentation provided by Licensor, at the rates set forth on Exhibit A. In the event Updates are provided to Licensee, such Updates shall become a part of the “Software” for purposes of this Agreement and shall be subject to all of the terms and conditions of this Agreement.

Section 8.

Modification of Licenses; Upgrades.

The license granted herein does not provide for any updates of the Software.

Section 9.

Term and Termination.

    • (i) at any time by mutual agreement of the parties;

      (ii) at the end of the initial or any renewal term hereof, if either party shall give notice to the other of its election to terminate this Agreement not less than sixty (60) days prior to the end of any such term;

      (iii) immediately upon Licensor’s written notice to Licensee if Licensee breaches or violates any of its obligations under Section 3, 4 or 5 of this Agreement;

      (iv) automatically, without further notice to Licensee, if Licensee breaches or violates any other term of this Agreement and fails to correct such breach or violation to the satisfaction of Licensor within ten (10) days after receiving notice of such breach or violation; or

      (v) as provided in Section 11(b) of this Agreement.

      (i) terminates or suspends its business;

      (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute which remains unstayed or is not dismissed within sixty (60) days of filing;

      (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or

      (iv) has wound up or liquidated, voluntary or otherwise.

      (i) discontinue all use of the Software;

      (ii) deliver to Licensor all diskettes containing the Software and all other physical copies of the Software;

      (iii) destroy the Software and all copies of the Software contained in any computer memory or data storage apparatus under the control of Licensee; and

      (iv) certify to Licensor within one week after the termination of this Agreement that Licensee has delivered to Licensor or destroyed the Software and all copies of the Software in accordance with this Section 9(c). Except to the extent provided in Section 11(b) of this Agreement, Licensee shall not be entitled to any refund of license fees as a result of any termination of this Agreement. Upon the occurrence of any event giving rise to Licensor’s right to terminate, Licensor shall have the right to terminate the license, disable and/or take immediate possession of the Software.

  • (a) The initial term of the license granted to Licensee hereunder shall be as set forth on the first page of this Agreement and will continue thereafter unless terminated earlier, as provided herein. This Agreement shall terminate:
    (b) In addition to the foregoing, each party shall have the right to terminate this Agreement and the license granted hereunder in the event the other
    (c) Licensee shall, upon termination of this Agreement:

Section 10.

Limited Warranty.

    • (i) refund the License Fee paid to Licensor by Licensee hereunder; or

      (ii) correct or replace the Software without charge. Such refund, correction or replacement of defective Software are Licensee’s exclusive remedies for breach of this warranty. Licensor does not represent or warrant that the Software will meet Licensee’s requirements or that its operation will be uninterrupted or error-free.

  • (a) Licensor warrants that the Software will perform substantially as specified in the user manuals and other documentation delivered with the Software and that the Software diskettes will be free of defects in materials and workmanship for thirty (30) days after the date of Licensee’s receipt of the Software; provided, however, that Licensor shall not be liable under this warranty if the Software has been modified or altered by anyone other than Licensor, if the Software has been abused or misapplied, or if Licensee has failed to incorporate all upgrades provided to Licensee by Licensor. In the event of a breach of this warranty, Licensee may return the defective Software to Licensor and Licensor, at Licensor’s option, will either:
    (b) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, LICENSOR DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE OR THE APPLICATION, OPERATION OR USE THEREOF, THE DATA GENERATED BY THE OPERATION OR USE THEREOF, OR ANY SUPPORT SERVICES RENDERED WITH RESPECT THERETO. LICENSOR HEREBY EXCLUDES ALL IMPLIED WARRANTIES TO THE EXTENT PERMITTED BY LAW, INCLUDING, SPECIFICALLY, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. LICENSOR HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, OR OF MERCHANTABLE QUALITY, OR OF FITNESS FOR ANY PARTICULAR PURPOSE, SPECIFIC OR OTHERWISE, OR OF NONINFRINGEMENT, CONCERNING THE SOFTWARE AND THE APPLICATION, OPERATION OR USE THEREOF.

Section 11.

Limitation of Remedies.

    • (i) procure from the third party the right to allow Licensee to continue to use the Software;

      (ii) modify or replace the Software or the infringing portions thereof to become noninfringing; or

      (iii) in the event that the foregoing options are not, in the sole judgment of Licensor, reasonably practical, terminate this Agreement immediately upon written notice to Licensee, and in the event of such termination by Licensor during the six-month period immediately following the Effective Date, fifty percent (50%) of the license fee paid by Licensee will be promptly refunded by Licensor.

      (i) Licensee’s operation of an application developed using the Software;

      (ii) Licensee’s combination of the Software with other products not furnished by Licensor; or

      (iii) Licensee’s use of a superseded or altered version of the Software. THE PROVISIONS OF THIS SECTION 11 STATE THE EXCLUSIVE LIABILITY OF LICENSOR, AND THE EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT TO ANY CLAIM, INCLUDING, WITHOUT LIMITATION, CLAIMS OF PATENT, COPYRIGHT, OR TRADE SECRET INFRINGEMENT. LICENSEE SHALL MAKE NO CLAIM AGAINST LICENSOR OR LICENSOR’S LICENSORS ON ACCOUNT THEREOF.

  • (a) Licensee acknowledges and agrees that it has independently verified that the Software is appropriate for the purposes for which Licensee intends to use the Software, and that Licensee did not rely upon any skill or judgment of Licensor in such selection. Licensee assumes the entire risk related to the use of the Software. Licensor’s liability in contract, tort or otherwise in connection with the Software or this Agreement shall not exceed the License Fee paid to Licensor by Licensee for the Software. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, LICENSEE FURTHER AGREES THAT NEITHER LICENSOR NOR ITS SUPPLIERS SHALL BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR DAMAGES IN THE FORM OF CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL OR OTHERWISE, OR FOR EXEMPLARY DAMAGES, RESULTING FROM LICENSEE’S USE OR INABILITY TO USE THE SOFTWARE OR FROM ANY SUPPORT SERVICES RENDERED WITH RESPECT THERETO, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    (b) If a third party claim against Licensee results in a judicial order preventing Licensee from using the Software based on a determination that the Software infringes upon such third party’s patent, copyright or trade secret rights, then Licensor, in its sole discretion, may:
    (c) Subject to the limitations set forth in this Agreement, Licensor agrees to defend and indemnify Licensee from and against any and all claims, demands and liability arising out of or directly attributable to any actual infringement by the software of any copyright, trademark, trade secret, patent, or other intellectual property right of a third party. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL LICENSOR’S LIABILITY HEREUNDER EXCEED THE LICENSE FEE PAID BY LICENSEE.

    (d) Neither Licensor nor its licensors shall have any obligation to Licensee or otherwise be liable to Licensee for any third party claim based on:

Section 12.

Dispute Resolution.

    (a) Except as set forth in this Section 12, any claim or dispute between the parties hereto pertaining to or arising out of this Agreement (including, without limitation, the negotiation or execution of this Agreement, or the interpretation, performance or breach of any provision of this Agreement) shall be settled by binding arbitration in Tarrant County, Texas, under the Commercial Arbitration Rules of the American Arbitration Association. There shall be three arbitrators appointed to settle the dispute, one appointed by each party and the third appointed in accordance with the rules of the American Arbitration Association. Any arbitration award shall be accompanied by a written opinion of the arbitrator giving the reasons for the award, which award may be entered as a judgment in any court of competent jurisdiction. This provision for arbitration shall be specifically enforceable by the parties and, except as otherwise provided by applicable law, the decision of the arbitrator in accordance herewith shall be final and binding. The arbitrator shall have the power to issue and grant permanent injunctive relief and other equitable orders and remedies. Any such arbitration shall be conducted in confidence and in accordance with the confidentiality provisions of this Agreement. Each party shall pay its own expenses of arbitration and the expenses of the arbitrator shall be equally shared.

    (b) Licensee recognizes that Licensor will be irreparably harmed in the event of Licensee’s breach or threatened breach of Section 3 or 4 of this Agreement, and that, notwithstanding anything contained herein to the contrary, Licensor may commence an action in any court of competent jurisdiction, to obtain equitable relief to prevent such breach or threatened breach at any time prior to the commencement of an arbitration proceeding and, if an arbitration proceeding has been commenced, at any time until an arbitration award is rendered in such arbitration proceeding or the claim or dispute is otherwise resolved. Licensee shall reimburse Licensor for all fees, costs and expenses including, without limitation, attorneys’ fees, costs and expenses incurred by Licensor in taking such court action to obtain equitable relief. Licensor shall not be deemed to have waived its right to arbitrate any dispute, claim or controversy by reason of seeking such equitable relief.

Section 13.

Survival.

Upon termination of this Agreement, all rights and obligations of the parties shall cease, except for the obligations of Licensee under Sections 3, 4, 9(b), 11, 12 and this Section 13, which obligations shall survive the termination of this Agreement.

Section 14.

Remedies.

The pursuit by Licensor of any remedy to which it is entitled at any time shall not be deemed an election of remedies or waiver of the right to pursue any of the other remedies to which it may be entitled.

Section 15.

Binding Effect; Assignment.

This Agreement and all of the terms, provisions and conditions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Licensee may not assign the license granted hereunder or any of its rights or obligations hereunder without the prior written consent of Licensor, which may be granted or withheld in Licensor’s sole discretion. A merger, business combination or other corporate transaction that results in an assignment by operation of law shall be deemed an assignment for purposes of this Section 15. Any attempted assignment in violation of this Section 15 by Licensee of its rights or obligations under this Agreement, whether by operation of law or otherwise, shall have no force or effect.

Section 16.

Entire Agreement.

This Agreement, together with all schedules attached hereto, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof.

Section 17.

Amendment; Waiver.

No modification, variation or amendment of this Agreement shall be effective without the written consent of both parties hereto. A failure of either party to this Agreement to enforce at any time any of the provisions of this Agreement, or to require at any time performance of any of the provisions hereof, shall in no way affect the full right to require such performance at any time thereafter. No waiver shall be deemed a waiver of any other breach of, or noncompliance with, the same or any other term or condition hereof.

Section 18.

Notices.

All notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given to a party if delivered personally or mailed by registered or certified mail, postage prepaid, return receipt requested, or by overnight delivery by a nationally-recognized courier, to the address for such party set forth above or to such other address or person as either party may from time to time designate to the other in writing. Any such notice or other communication shall be deemed to be given as of the date it is personally delivered, five (5) days after its being deposited in the United States mail, or one (1) day after being deposited with a nationally-recognized courier for overnight delivery.

Section 19.

Invalid, Illegal or Unenforceable Provisions.

In the event that any one or more provisions of this Agreement shall for any reason be held by any tribunal of competent jurisdiction to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and each invalid, illegal or unenforceable provision shall be treated by the tribunal as modified to the least extent necessary to rectify its invalidity, illegality or unenforceability and shall be enforced as so modified.

Nothing in this Agreement shall be deemed or construed by the parties or any other entity to create an agency, partnership or joint venture between Licensor and Licensee.

Section 20.

Independent Contractors.

Nothing in this Agreement shall be deemed or construed by the parties or any other entity to create an agency, partnership or joint venture between Licensor and Licensee.

Section 21.

Governing Law.

This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Texas, exclusive of the conflicts of law principles thereof.

Section 22.

Export.

Licensee agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the export laws, restrictions or regulations of the United States.

Section 23.

Publicity.

Licensee acknowledges and agrees that Licensor may reference Licensee and use Licensee’s name and trademarks in connection with Licensor’s marketing materials and advertisements.

Section 24.

Counterparts.

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original instrument and all of which together shall constitute a single agreement.

PLEASE READ THIS LICENSE CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, PROMPTLY RETURN AND/OR DESTROY THE SOFTWARE.

EXHIBIT A

Installation and Support Service Rates

The Licensor may provide Licensee with support services related to the Software, including telephone and technical support, at Licensor’s rates current for the date the services are rendered (e.g., the rates listed below represent currently-applicable rates as of the date of the execution of the License Agreement-these rates do not constitute fixed rates, but are current rates which remain subject to modification depending on future rates). Use of support services is governed by Licensor’s policies and programs described in the User Manual, “on-line” documentation, and/or other provided materials. Any supplemental items provided to Licensee as part of the support services shall be considered part of the Software and subject to the terms and conditions of this License Agreement. In the event Licensor discontinues the Software, Licensor will provide written notice to Licensee. Licensor will continue to provide the support and maintenance services purchased by Licensee at the specified rates for a period of six (6) months from the date of notice of discontinuation.

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H2A Environmental, Ltd.
1862 Keller Parkway
Keller, TX 76248

817.380.3888 Phone
682.593.0660 Fax

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