C-Store Office General Terms and Conditions of Use
This General Terms and Conditions of Use Agreement, and all appendixes attached hereto (the “License Agreement” or “Agreement”) is entered into by and between Petrosoft Inc., a Pennsylvania corporation, having its principal place of business at 2025 Greentree Road, Pittsburgh, PA 15220 (“Petrosoft”) and Users of the C-Store Office™ back office program (“Customer”).
In consideration of the mutual promises contained herein, the parties agree as follows:
In this Agreement and the appendixes to this Agreement, the terms set forth below shall have the following meaning:
1.1. “Affiliates” means, with respect to either party to this Agreement, any business entity that, directly or indirectly controls, is controlled by, or is under common control, with a party or that is a successor to any such business entity or all or substantially all of its business and assets.
1.2. “Applications” means Petrosoft’s software applications set out on the Order Form, including but not limited to web site installations of Petrosoft’s C-Store Office™ and Fuel-Central.com.
1.3. “Confidential Information” means (a) a party’s business plans, customer information, technology, and other information whether written, oral, or in any other media or format; or (b) any Applications or Documentation provided to Customer by Petrosoft; or (c) any Customer Materials provided by or made available to Petrosoft by Customer in the course of this Agreement.
1.4. “Customer Materials” means software, equipment, specifications, data, or other material proprietary to Customer and provided to Petrosoft for provision of the Services.
1.5. “Documentation” means the manuals and software documentation provided to Customer by Petrosoft in connection with licensing the Applications to Customer.
1.6. “Petrosoft Technology” means Petrosoft’s technology used to provide Applications and/or Services to Customer, including without limitation software tools, hardware designs, algorithms, software, architecture, class libraries, objects and documentation, network designs, know-how, trade secrets and any related Intellectual Property Rights (whether owned or licensed by Petrosoft) and derivatives, improvements, enhancements or extensions during or after this Agreement.
1.7. “Intellectual Property Rights” means any patent, copyright, trademark, trade secret, trade dress, inventions, discoveries, technology, know-how, or other intellectual or industrial property rights or proprietary rights arising under the laws of any jurisdiction.
1.8 “Licensed Materials” means the Applications and Documentation, collectively.
1.9. “Professional Services” means installation, integration, configuration, consulting, and/or other computer related professional services described in Appendix 1, attached hereto, to be performed by Petrosoft for Customer pursuant to an Order Form and/or a Statement of Work.
1.10. “Services” means Professional Services and Applications Support Services, collectively.
1.11. “Specifications” means technical and functional specifications that the Work Product (as defined in Appendix 1) resulting from the Professional Services will meet as described in the applicable Statement of Work.
2. Applications License.
2.1. Grant. Upon execution of this Agreement and Order Form(s), and Customer’s compliance with the terms and conditions of this Agreement, Petrosoft hereby grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in this Agreement) license, without the right to sublicense (a) to access and use the Licensed Materials, and (b) to develop software for use with the Licensed Materials and, to the extent necessary or desirable, to integrate or interface the Applications with Customer or third party software for use by Customer as contemplated herein. All rights not specifically granted in this Agreement to Customer are reserved to Petrosoft.
2.2. Restrictions on Use. Subject to the provisions of Section 2.1, Customer shall not, and shall not permit any third party to (i) modify or otherwise create any derivative work of any part of the Licensed Materials, (ii) permit any Affiliates of Customer or third parties to use the Licensed Materials for commercial time-sharing or service bureau use, (iii) sell, license, sublicense, distribute, assign or otherwise transfer or make accessible to a third party the Licensed Materials or any copy thereof, in whole or in part, or (iv) use the Applications outside the scope of use licensed herein. Petrosoft shall have the right, for purposes of verification of Customer’s compliance with this Agreement, to audit and/or monitor Customer’s use of the Applications.
2.3. Copies. Any copies of the Licensed Materials made by Customer are the exclusive property of Petrosoft.
2.4. No Reverse Engineering. Customer shall have no rights to any source code for the Applications. Customer agrees that it shall not cause or permit the disassembly, decompilation or reverse engineering of the Applications or otherwise attempt to gain access to the source code to the Applications.
3. Delivery of Applications. Petrosoft shall provide Customer with access to the latest release of the Applications made generally available by Petrosoft promptly after the applicable Order Form is executed by the parties (unless otherwise specified therein).
4.1 Professional Services. Petrosoft or its designee shall supply Professional Services, such as installation, integration, configuration, and/or consulting services, if and as specified in an Order Form and SOW (as defined in Appendix 1).
4.2 Applications Support Services. Upon payment by Customer of the monthly license fees as provided in this Agreement, Customer shall be entitled to receive regular maintenance and support services available to Petrosoft customers by phone or e-mail between the hours of 9:00 AM and 6:00 PM Eastern Time Monday through Friday, excluding holidays.
5. Payment of Fees; Taxes.
5.1. Payment of Fees. Customer shall pay Petrosoft the fees in the amounts and in the manner set forth in the Order Form. All Service Fees are exclusive of out-of-pocket expenses.
5.2. Taxes. Fees do not include sales, use, value added, duties or other excise tax. Customer shall be solely responsible for all such taxes. Customer agrees to hold Petrosoft harmless from all claims and liability arising from Customer?s failure to report or pay any such taxes, duties or assessments.
6. Protection of the Licensed Materials.
6.1 Ownership. Customer agrees that Petrosoft or its licensors own and shall retain all proprietary rights, including all title, patent, copyright, trade secret, trademark and other intellectual property rights, in and to the Licensed Materials and Petrosoft Technology and any enhancements, updates or other modifications thereto made by any entity. Customer agrees any updates, patches, bug fixes, workarounds, upgrades and enhancements to the Licensed Materials furnished in connection with any Applications Support Services shall be the sole and exclusive property of Petrosoft, shall be licensed to Customer as part of the Licensed Materials, and shall be subject to use by Customer in accordance with the terms and conditions of this Agreement.
6.2 Proprietary Markings. Customer shall not alter, remove or conceal any government restricted rights notice or any copyright, trademark, trade name or other proprietary marking or notice that may appear in or on the Licensed Materials and shall reproduce all such markings and notices in or on all copies of the Licensed Materials made by Customer.
7. Limited Warranty and Disclaimer.
7.1. Scope of Warranty. Petrosoft represents and warrants to Customer that at the date of this Agreement the Licensed Materials are owned by Petrosoft or that Petrosoft currently has distribution rights for the Licensed Materials and has the right to license the same to Customer. Petrosoft does not warrant that the Applications will be error free or that all errors can be remedied. If any breach by Petrosoft of the representations and warranties set forth in this Section 7.1 is not cured or corrected by Petrosoft within ninety (90) days of receipt of notice from Customer of such breach, Customer may terminate this license. Upon termination of this license, Customer will cease its use of the Licensed Materials and return same to Petrosoft and neither party shall have any further rights, duties or obligations hereunder. The foregoing shall be Petrosoft?s entire liability and Customer?s sole and exclusive remedy under Petrosoft?s warranties and representations set forth herein. Petrosoft makes no warranty with respect to any software used for integration of the Applications with third party software or systems.
7.2. Disclaimer of Any Other Warranties. EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED IN THIS SECTION, PETROSOFT MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED MATERIALS, SERVICES, OR PETROSOFT TECHNOLOGY AND PETROSOFT DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. PETROSOFT SPECIFICALLY DOES NOT WARRANT THAT THE LICENSED MATERIALS SHALL MEET ALL OF CUSTOMER?S REQUIREMENTS OR SHALL OPERATE IN ALL COMBINATIONS WHICH MAY BE SELECTED FOR USE BY CUSTOMER; THAT THE OPERATION OF THE LICENSED MATERIALS SHALL BE ERROR-FREE OR UNINTERRUPTED; OR THAT ALL ERRORS OR DEFECTS IN THE LICENSED MATERIALS SHALL BE CORRECTED.
8. Confidential Information.
8.1. Confidential Information. Each party (“Recipient”) acknowledges that in the course of performing under this Agreement it may have access to certain Confidential Information of the other party (“Disclosing Party”).
8.2. Duties. Recipient shall maintain the Confidential Information as confidential, and will not use it in any way, except as required to achieve the purposes of this Agreement, nor disclose to any third party (except to Recipient?s employees, consultants, contractors, attorneys, accountants and other advisors (collectively, “Representatives”) who have a need to know such Confidential Information and who have been informed of and are obligated to comply with the terms of this Agreement). Recipient shall be responsible for any breach of this Agreement by any of its Representatives and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information, but in no case less than reasonable care.
8.3. Exceptions. The obligations of the Recipient specified above shall not apply to the extent any Confidential Information (i) is known to Recipient prior to receipt from Disclosing Party other than as a result of Recipient?s breach of any legal obligation; (ii) becomes known (independently of disclosure by Disclosing Party) to Recipient directly or indirectly from a source having the legal right to disclose such Confidential Information; (iii) is or becomes publicly known, or known in the industry, except through a breach of this Agreement by Recipient; or (iv) is required to be disclosed by Recipient to comply with applicable laws or governmental regulations, provided that Recipient gives Disclosing Party reasonable prior written notice of such disclosure sufficient to permit Disclosing Party to contest such disclosure and Recipient takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.
8.4. Ownership of Proprietary Information. Disclosing Party is and shall remain the exclusive owner of Confidential Information.
Customer will indemnify, defend and hold harmless Petrosoft and its officers, directors, employees, and agents (collectively, the “Indemnified Party”) from and against any and all claims, demands, costs, damages, settlements, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and court costs) (collectively, ?Losses?) of any kind whatsoever, directly and to the extent arising out of any third party claim, suit, action, or proceeding (each, an “Action”) that any Customer Materials provided hereunder to the Indemnified Party or any portion thereof, or the Indemnified Party’s exercise of its rights under this Agreement with respect to the Indemnified Material in accordance with the Agreement, infringe on the Intellectual Property Rights of any third party or constitute a misappropriation of the trade secrets of a third party.
10. Limitations of Liability.
10.1. To the maximum extent permitted by applicable law, except for a breach by customer in payment of license or service fees due to petrosoft under this agreement, or of section 2.1 (grant), 2.2 (restrictions on use) or 6.1 (ownership), or a breach by of section 8 (confidential information) or 9 (indemnification), petrosoft?S total liability in contract, tort (including negligence) or otherwise with respect to the licensed materials, software support services, professional services and any other materials or services provided hereunder shall be limited to direct damages and shall not exceed the aggregate amounts paid by customer to petrosoft hereunder with respect to such licensed materials and applications support services for the preceding twelve months prior to such breach.
10.2. To the maximum extent permitted by applicable law, in no event will either party be liable for special, consequential, incidental, or other indirect damages, including, but not limited to, loss of profits, loss of revenue, loss of use or loss of data, or costs of procurement of substitute goods or services arising out of this agreement, however caused and under any theory of liability (including negligence), even if such party has been advised of the possibility of such damages. Customer acknowledges that the amounts payable hereunder are based in part on these limitations, and further agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. The foregoing limitation shall not apply to any intentional act by customer to misappropriate any intellectual property of petrosoft or any breach by customer of the confidentiality provisions of this agreement.
11. Term and Termination.
11.1. Effective Date and Term. This Agreement and the license granted hereunder shall be effective as of the Effective Date upon execution by the parties and shall remain in effect unless and until terminated in accordance with the provisions set forth in Section 11.2 below.
11.2. Termination. Either party shall have the right to terminate this Agreement and the license granted herein in the event: (i) the other party fails to comply with any of the material terms and conditions of this Agreement and such material breach or default has not been cured within thirty (30) days after written notice of such default to the other party (or such other period of time provided for cure specified in this Agreement); or (ii) the other party terminates or suspends its business, makes an assignment for the benefit of creditors, or has wound up or liquidated, voluntarily or otherwise.
11.3. Effect of Termination. The rights and obligations of Petrosoft and Customer in Sections 4 (for unpaid amounts), 5, 7, 8, 9, 10, 11.3, and 12 shall survive termination of this Agreement. In the event of any termination of this Agreement, within five (5) days after such termination, Customer shall: (i) discontinue all use of the Licensed Materials; (ii) erase or destroy any Licensed Materials contained in the computer memory or data storage apparatus under the control of Customer; (iii) return to Petrosoft or destroy, at Customer?s expense, the Licensed Materials, including all copies thereof, and (iv) deliver to Petrosoft a certification, in writing signed by an officer of Customer, within thirty (30) days of the termination of this Agreement, that the Licensed Materials and all copies thereof have been returned or destroyed, as requested by Petrosoft, and their use discontinued. On termination, each party shall pay all amounts that have accrued and that are payable to the other party under this Agreement.
12.1. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns. Neither party shall assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, except with the other party?s prior written consent, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, each party hereto shall be permitted to assign this Agreement by merger, consolidation, sale of assets, or operation of law without the other party?s prior written consent. Any purported transfer, assignment or delegation by a party in breach of the provisions of this Section 12.1 without such prior written consent will entitle the other party to terminate this Agreement.
12.2. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties relating to the subject matter hereof, and supersedes any and all oral and prior written representations, agreements and understandings between the parties with respect to the matters covered by this Agreement. In the event of a conflict between the terms of this Agreement and an Order Form and its Exhibits, the terms of the Order Form and its Exhibits shall control. Customer agrees that it has not entered into this Agreement based on any representations other than those contained herein. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the party to be charged. Printed terms and conditions on Customer?s purchase order shall not apply, even if executed by Petrosoft before or after the Effective Date of this Agreement.
12.3. Delays. Neither Party shall be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond such Party’s reasonable control and which such Party is unable to overcome by the exercise of reasonable diligence. The foregoing shall not apply with respect to any payment obligations of either party.
12.4 Publicity. Upon signing of this Agreement, Customer grants Petrosoft the right to add Customer?s name and company logo on its customer list and web site.
12.5 Third Party Products. Third party products supplied under this Agreement are licensed for use solely with the Petrosoft products licensed to Customer under this Agreement and may not be used on a stand-alone basis or with any other third party products.
12.6 Export; Government Restricted Rights. Customer acknowledges that the export of any Applications, technical data or other commodities is or may be subject to export or import control and Customer agrees that any Applications, technical data or other commodities or the direct or indirect product thereof will not be exported (or re?exported from a country of installation) directly or indirectly, unless Customer obtains all necessary licenses from the U.S. Department of Commerce or other agency as required by law. In the event that Customer is an agency of the United States Government or that a license granted hereunder is pursuant to a contract with either a defense or civilian agency of the United States Government, Customer hereby acknowledges that the Applications licensed hereunder is commercial computer software developed at private expense and provided to Customer subject to restricted rights. Use, duplication, or disclosure of the Applications by the United States Government is subject to the restrictions set forth in subparagraph (C)(1)(ii) of the Rights in Technical Data and Computer Applications clause at DFARS 252.227-7013, and the restrictions set forth in subparagraphs (C)(1) and (2) of the Commercial Computer Applications-Restricted Rights clause at 48 CFR 52.227-19, as applicable, or in successor provisions, as well as the limitations set forth herein. Manufacturer is Petrosoft, Inc., located at 2025 Greentree Road, Pittsburgh, PA 15220.
12.7 No Agency; Independent Contractors. Petrosoft and Customer are independent contractors. Neither party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party’s name or on its behalf.
12.8 Miscellaneous. This Agreement shall in all respects be governed by, interpreted and construed in accordance with the laws of the Commonwealth of Pennsylvania, excluding its conflicts of laws principles. The parties hereby agree that all disputes arising out of this Agreement shall be subject to the non-exclusive jurisdiction of the federal and state courts within Allegheny County, Pennsylvania. The parties hereby consent to, and waive defenses of, the personal jurisdiction and venue of these courts. If any of the provisions of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable under any applicable statute or rule of law, such provision shall, to that extent, be deemed omitted, and the remaining portions of this Agreement shall remain in full force and effect. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. All notices permitted or required under this Agreement shall be in writing and shall be delivered in person or mailed by first class, registered or certified mail, postage prepaid, or by reputable overnight carrier, to the address of the party as it may specify in writing. Such notice shall be deemed to have been given upon receipt. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. The headings are for convenience and shall not be used to construe this Agreement.