Goodhue License Agreement

This Software License Agreement (this “Agreement”) is by and between Goodhue, LLC, a Colorado limited liability company (“Goodhue”) and the person or entity (“Customer”) who purchased a License to Goodhue’s Software using Goodhue’s order form (the “Order Form”) available online. Goodhue and Customer are each a “Party” and collectively the “Parties” to this Agreement. Capitalized terms are defined throughout this Agreement.

The Parties agree as follows:

License to Software.
1. License Grant. Subject to the terms and conditions of this Agreement (including the timely payment of fees when due), Goodhue hereby grants to Customer during the Term a limited, non-exclusive, non-transferable, non-sublicensable right and license (the “License”) to install and use the software described above, including any updates provided by Goodhue thereto (collectively, the “Software”), in object code form only and to use the documentation provided to Customer with respect to the Software, in hard copy or electronic form (the “Documentation”).
2. Restriction on Use. Customer shall not, nor shall it permit, assist, or encourage any third party, to: copy, modify, adapt, alter, translate, or create derivative works from the Software or Documentation; sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer the Software or the Documentation to any third party; merge the Software with other software or use the Software to develop any application or program having the same primary function as the Software; reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; directly or indirectly encumber the Software; or otherwise exercise any rights in or to the Software or the Documentation, except as expressly permitted herein. Customer will claim no right or interest in or to the Software, other than the rights expressly granted herein.
3. Backup Copies. Customer may make a reasonable number of copies of the Software for back-up or archival purposes and will not remove original copyright and trademark notices, claims of confidentiality, or other markings when making such copies.
Installation and Acceptance.
1. Installation. Promptly after the Purchase Date, Goodhue shall deliver to Customer a copy of the Software in machine-readable object code form either on physical media or by Internet download. Customer shall promptly install the Software (the “Installation”). Goodhue shall provide reasonable off-site assistance with the Installation in Goodhue’s discretion.
2. Acceptance. Customer shall have five business days after receipt of the Software (the “Testing Period”) to verify whether the Software conforms in all material respects to the specifications in the Documentation (the “Specifications”). If the Software fails to conform in all material respects to the Specifications, Customer shall notify Goodhue in writing of the nonconformance (the “Nonconformance Notice”). Goodhue shall have 30 days from the date of a Nonconformance Notice (the “Correction Period”) in which to correct or modify the Software to conform in all material respects to the Specifications and to resubmit the Software to Customer for testing. Customer shall have 14 days after Customer’s receipt of the resubmitted Software (the “Re-Testing Period”) to verify whether the Software conforms in all material respects to the Specifications. If the Software continues to fail to conform in all material respects to the Specifications during the Re-Testing Period, Customer may elect to extend the Correction Period as the Parties may agree (in which case the Re-Testing Period process shall repeat) or terminate this Agreement, delete or return to Goodhue the Software and Documentation, and receive a refund of all Fees paid. Customer shall be deemed to have accepted the Software if Customer gives Goodhue notice of acceptance or does not give Goodhue a Nonconformance Notice before the expiration of the Testing Period or Re-Testing Period, as applicable.
Term.
1. Term. The term of this Agreement is one year from the date on which Customer submits the Order Form (unless the Order Form provides for a different initial term) and shall automatically renew for an unlimited number of one year renewal terms. “Term” means the initial term and each renewal term.
2. Termination.
  1. Termination for Convenience. Either Party may terminate this Agreement effective at the end of the then-current Term by giving written notice to the other Party.
  2. Termination for Breach. This Agreement will automatically terminate if a material breach of this Agreement remains uncured 14 days after written notice of the breach is given to the breaching Party.
  3. Termination of Insolvency. A Party may terminate this Agreement by giving written notice to the other Party if the other Party becomes insolvent, is declared bankrupt by a court of competent jurisdiction, or becomes the subject of any reorganization (other than a corporate reorganization effected in the ordinary course of business and not arising out of any insolvency), winding up, receivership or dissolution, bankruptcy or liquidation proceeding, or any other proceeding or action similar to one or more of the above.
  4. Effect of Termination. Upon termination of this Agreement for any reason all licensed rights granted by Goodhue herein (including the License) will immediately terminate and revert to Goodhue and Customer shall promptly discontinue use of the Software, delete all copies of the Software from the computers of Customer, return to Goodhue or destroy all copies of the Software, Documentation, and Confidential Information of Goodhue in the possession or control of Customer and certify in writing to Goodhue that it has fully complied with these requirements.
Proprietary Rights.
1. Goodhue Rights. The Software is licensed to Customer and not sold. The Software and Documentation, and all Intellectual Property rights therein, are the exclusive property of Goodhue or its licensors. All rights in and to the Software, the Documentation, and Goodhue’s other Intellectual Property not expressly granted to Customer in this Agreement are reserved by Goodhue. If Customer or any of its affiliates is deemed to have any ownership interest or other rights in the Software or any Documentation, including any and all derivative works, enhancements, or other modifications thereto, then Customer shall assign or cause such affiliate to assign, and Customer does hereby assign, irrevocably and royalty-free, all of such ownership interest or other rights exclusively to Goodhue and Customer shall, at Goodhue’s reasonable request and at Customer’s expense, complete, execute, and deliver any and all documents necessary to effect or perfect such assignments. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) on the Software or the Documentation or any copy thereof. “Intellectual Property” means copyrights, trademarks, trademark applications (including intent-to-use applications), trade names, moral rights, trade secrets, patents, patent applications, inventions, invention disclosures, know-how, designs, and other items commonly recognized as intellectual property under the laws of the United States or any other country.
2. Third-Party Software. The Software may incorporate or require the use of software provided by third parties (“Third-Party Software”) that may be subject to additional license terms. All Third-Party Software provided by Goodhue is provided “as-is” without representations, warranties, or conditions. Goodhue will have no liability for Third-Party Software.
Customer Obligations.
1. Customer Data. Customer shall be solely responsible for any photographs, files, data, and information (“Customer Data”) that Customers uses with the Software. Customer represents and warrants that the Customer Data will not violate any third party’s Intellectual Property rights and that Customer has sufficient rights to use all Customer Data. Customer shall not use the Software to violate any third party’s Intellectual Property rights.
2. Data Security. Customer is solely responsible for all data and cyber security related to any Customer Data and Data Outputs which Customer inputs, stores, or accesses on or through the Software. Customer hereby releases Goodhue from any liability for a breach of Customer’s computers or networks.
3. Supervision and Management. Customer is responsible for undertaking the proper supervision, control, and management of its use of the Software, including assuring a proper supported environment configuration (as described in the Documentation) and following industry standard procedures for the security of data, accuracy of inputs and outputs, and back-up plans, including restart and recovery. Customer is responsible for all use of the Software, including by each authorized or unauthorized third party who uses Customer’s instance of the Software.
Warranties.
1. Limited Warranty. Goodhue represents and warrants that the Software will perform in all material respects as described in the Documentation and the Documentation will be at least equal to comparable materials generally in use in the industry and will accurately reflect the operation of the Software in all material respects.
2. Exclusive Remedy. Customer’s sole and exclusive remedy for the breach of Section 6.01 or any other representations or warranties made by Goodhue herein is for Goodhue to, at Goodhue’s sole discretion, cure the breach or terminate this Agreement and refund to Customer a pro rata portion of any prepaid fees for the unexpired portion of the Term.
3. Disclaimer. Except was set forth in Section 6.01, Goodhue expressly disclaims all express and implied representations and warranties, oral or written, including merchantability, fitness for a particular purpose, and title. Goodhue does not represent or warrant that the Software will meet Customer’s business requirements or be error free or that any deficiencies in the Software will be found or corrected.
Liability.
1. Waiver of Damages. Neither Party shall be liable under this Agreement for incidental, consequential, indirect, statutory, special, exemplary, or punitive damages, or for damages for lost profits, even if the Party in question has been advised to the possibility of such damages.
2. Limitation of Liability. Each Party’s entire liability arising under or relating to this Agreement shall not exceed the fees paid or payable in the twelve-month period immediately before the event giving rise to liability.
3. Exclusions. Sections 7.01 and 7.02 shall not limit each Party’s indemnification obligations under Section 8, either Party’s liability for a breach of Section 9 (Confidentiality), or Customer’s breach of Section 1.02 or violation, infringement, or misappropriate of Goodhue’s Intellectual Property rights.
Indemnification.
1. Mutual Third-Party Indemnification. Each Party (as the “Indemnifying Party”) shall indemnify and hold harmless the other Party, its Affiliates, and the other Party’s and its Affiliates’ directors, officers, employees, contractors, and agents (collectively, the “Indemnified Parties”) from and against any and all liabilities, damages, losses, judgments, fines, and expenses, including reasonable attorneys’ fees and costs (“Liabilities”), resulting from or incurred as a result of any claim, action, suit, or proceeding brought or made by a third party (a “Third-Party Claim”) arising out of or related to the Indemnifying Party’s or its Affiliates’ negligence or willful or intentional misconduct, breach of this Agreement (including the Indemnifying Party’s representations and warranties), and violation, infringement, or misappropriation of any right of a third party, including Intellectual Property rights, that arises out of or relates to this Agreement. Upon request by an Indemnified Party, the Indemnifying Party shall defend Customer against a Third-Party Claim.
2. IP Claims. In the event of a Third Party Claim asserting or involving an allegation of that the Software violates, infringes, or misappropriates any third party’s Intellectual Property rights (an “IP Claim”), Goodhue shall (in addition to providing indemnification under Section 8.01): procure for Customer the right to continue using the Software; replace or modify the Software so that it becomes non-infringing (such modification or replacement shall be materially similar to the original); or, if neither (a) nor (b) is practicable in Goodhue’s sole discretion, terminate this Agreement. Goodhue shall have the right to defend Customer against an IP Claim. This Section 8.02 is Customer’s exclusive remedy, and Goodhue’s sole obligation, in the event of an IP Claim.
3. Exclusions. Notwithstanding Sections 8.01 or 8.02, Goodhue will not indemnify Customer to the extent that the Third-Party Claim arises out of or is related to Customer’s breach of this Agreement, Customer’s breach of any license terms applicable to Third-Party Software, alteration of the Software, or the combination of any portion of the Software with any products or services not specified in the Documentation or provided by Goodhue or if Customer refuses to install and use an updated version of the Software which does not violate, infringe, or misappropriate the third party’s Intellectual Property rights, provided that Goodhue has made such updated version of the Software available to Customer for at least ten days and without cost to Customer.
Confidentiality.
1. Definition of Confidential Information.
  1. “Confidential Information” means all information that a Party or its Affiliates (collectively, the “Disclosing Party”) discloses to or is learned by the other Party or its Affiliates (collectively, the “Receiving Party”) that falls within one or more of the following categories: any information identified as confidential by the Disclosing Party; any information which the Receiving Party knows or reasonably should know that the Disclosing Party is required to keep confidential under a binding obligation with a third party or under law; and all information which the Receiving Party knows or reasonably should know could be detrimental to the interests of a Disclosing Party if disclosed or used without authorization, whether or not such information is identified as confidential.
  2. Information that falls into any one or more of the following categories will not constitute Confidential Information: information that is or becomes part of the public domain through no fault of the Receiving Party, under circumstances not involving a violation of the rights of the Disclosing Party; information that the Receiving Party can show was known by the Receiving Party prior to receipt from the Disclosing Party; information that the Receiving Party can show was independently developed by or for the Receiving Party without relying on Confidential Information; and information that the Receiving Party can show was rightfully received from a third party who is not under any obligation to maintain the confidentiality of such information, under circumstances not involving a violation of the rights of the Disclosing Party.
2. Protection of Confidential Information. The Receiving Party will not, directly or indirectly, without the written consent of the Disclosing Party, disclose, transfer, or otherwise communicate to any third party any Confidential Information or use Confidential Information for any purpose other than as necessary to exercise its rights and perform its obligations hereunder.
3. Disclosure by Court Order or Law. The Receiving Party will not be in breach of the obligations hereunder to the extent that it provides Confidential Information under a court order or discloses Confidential Information as required by law. Before the Receiving Party discloses Confidential Information under this Section 9.03, the Receiving Party must: promptly notify the Disclosing Party in writing of the court order or legal requirement; give the Disclosing Party a reasonable opportunity to contest or limit the required disclosure; and provide reasonable assistance at the Disclosing Party’s expense, except to the extent it is illegal to do any of the foregoing.
4. Return of Confidential Information. Upon the termination or expiration of this Agreement or upon demand by the Disclosing Party, the Receiving Party shall deliver to the Disclosing Party the originals and all copies of all materials and writings received from, created for, or belonging to the Disclosing Party which relate to or contain Confidential Information and delete all electronically stored materials which relate to or contain Confidential Information. The foregoing shall not apply to information stored in electronic data backup systems, it being impractical to delete such information, but this Section 9 shall continue to apply to such information. The Receiving Party shall provide written certification that it has complied with this Section 9.04 upon request of the Disclosing Party.
5. Availability of Injunctive Relief. The breach or threatened breach of this Sections 9 would be highly prejudicial to the interests of the non-breaching Party and would materially damage the non-breaching Party. Therefore, in addition to any other remedy that may be available, the non-breaching Party is entitled to obtain injunctive relief (including specific performance) restraining such breach or threatened breach without posting a bond.
Miscellaneous.
1. Notices. All notices given or made under this Agreement must be in writing and will be effective upon actual receipt. Notices will be presumed received as follows: one business day after having been sent by email to the intended recipient, subject to proof of receipt; three business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or one business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery. Notices and other communications may be addressed to the Party’s address as listed on the signature page of this Agreement.
2. Further Assurances. Each Party shall execute all further documents and take all further acts reasonably necessary or appropriate to carrying out the intent of this Agreement or as otherwise required under any applicable law, rule, or regulation.
3. Governing Law; Venue; Jury Trial Waiver. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to the conflict of laws principles. Any action brought by either Party to interpret or enforce any provision of this Agreement shall be brought only in a state or federal court located in Denver, Colorado. Each Party submits to the jurisdiction and venue of such courts and waives any objection to which it otherwise might be entitled regarding such jurisdiction or venue. Each Party hereby waives any right it may have to a trial jury in any action, suit, or proceeding arising out of or relating to this Agreement.
4. Integration. The provisions of this Agreement, along with any provisions in the Order Form, represents the entire agreement between the Parties relating to the License, the Software, and the other matters addressed herein and supersede all prior and contemporaneous representations, proposals, discussions, and communications, whether oral or in writing, relating to the subject matter hereof.
5. Severability. If any provision of this Agreement is held to be invalid, void, or unenforceable, the Parties intend that the provision be enforceable to the maximum extent permitted under law and therefore the Parties desire and request that the court reform the invalid or unenforceable provision to render it enforceable to the maximum extent permitted. If the court refuses to modify or reform the provision, then the provision shall be severed from this Agreement with no effect upon the remaining provisions of this Agreement.
6. Waiver. All waivers must be in writing and are only effective with respect to the specific matter involved and will not apply in any other respect or at any other time.
7. Amendments and Versions. Goodhue may amend the provisions of this Agreement from time to time and post an updated version of this Agreement on its website. The version of this Agreement posted on Goodhue’s website at the beginning of a Term shall be binding on Customer for that Term. If Customer does not agree with the provisions in the updated version of this Agreement, Customer’s only option is to terminate this Agreement for convenience as provided in Section 3.02(a).
8. Assignment. Customer may not transfer or assign this Agreement without the prior written consent of Goodhue; provided, however, that Customer may assign this Agreement without Goodhue’s consent in conjunction with the transfer of all or substantially all the assets of Customer. This Agreement shall bind and inure to the benefit of the heirs, successors, and permitted assigns of the Parties.
9. Third Party Beneficiaries. This Agreement is intended for the benefit of the Parties and their respective successors and permitted assigns. This Agreement is not for the benefit of, and may not be enforced by, any third party.
10. Force Majeure. A Party shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of God, fire, strike, embargo, terrorist attack, pandemic, war, insurrection or riot, failure of telecommunications or electrical utilities, or other causes beyond the reasonable control of such Party; provided, however, any such event shall not excuse or delay payment of any amounts due under this Agreement. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
11. Counterparts. This Agreement may be executed and delivered in counterparts, including by means of electronic signatures, all of which taken together will constitute one and the same agreement.

Rules of Construction. Unless otherwise stated, a reference to any numbered section will be construed as a reference to that entire section, including its subsections, if any. The headings in this Agreement are for convenience of reference only and will be ignored for purposes of construing and interpreting this Agreement. The Agreement will be interpreted as if jointly negotiated and drafted by the Parties and their legal counsel. The term “including” means including, without limitation. “Affiliate” means an entity or person that controls, is controlled by, or is under common control with another entity or person.