ARPA Portal Terms of Use

Clark, Schaefer, Hackett & Co. – Software Application Agreement

Please read this Agreement carefully. You (“Licensee”) accept and agree to be bound and abide by this Software Application Agreement (“Agreement”) entered into with Clark, Schaefer, Hackett & Co. (“Licensor”).1. LICENSE GRANTED

Subject to the terms and conditions of this Agreement and in consideration of Licensee’s obligation to pay monetary fees as agreed upon by Licensee and Licensor, such fees which may be adjusted from time to time, Licensor hereby grants, and Licensee hereby accepts, a perpetual, nontransferable license to use the Software in object code form within the United States. Licensor also grants permission to Licensee to make and create limited customizations to the Software. The parties agree that Licensor shall continue to own all right, title and interest in and to the Software and all intellectual property rights embodied therein or related thereto including, but not limited to, the source and object codes and any customizations to the Software. Except as expressly provided herein, no intellectual property rights are granted to Licensee by implication, estoppel, or otherwise. Licensee will safeguard the Software and its related materials with that degree of normal due care commensurate with reasonable standards of industrial security for the protection of trade secrets, personal and proprietary information so that no unauthorized use is made of them and no disclosure of any part of their contents is made to anyone other than Licensee’s employees, agents or consultants whose duties reasonably require such disclosure, or as necessary in the ordinary course of business. Licensee shall make all such persons fully aware of their responsibility to fulfill the obligations of Licensee under this Agreement.

2. SOFTWARE PROVIDED “AS IS”

Licensor licenses, and Licensee accepts, the licensed Application, “AS IS”. LICENSOR PROVIDES NO WARRANTIES AS TO THE FUNCTION OR USE OF THE APPLICATION WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. APPLICATION DOES NOT AND IS NOT INTENDED TO PROVIDE ADVICE OR REPORTING OF ANY KIND. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE APPLICATION IS WITH LICENSEE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN OR OF THE APPLICATION WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTRED OR ERROR FREE. ALL OF THE FOREGOING WARRANTIES SHALL REMAIN IN FULL FORCE AND EFFECT AT ALL TIMES WITH THE EXCEPTION OF ANY WARRANTY THAT MAY NOT LEGALLY BE WAIVED.

3. PROPERTY RIGHTS AND RESTRICTIONS ON USE

Licensee recognizes that the Software, and customizations, updates or corrections, if any, are the property of, and all rights thereto, are owned by Licensor. Licensee also acknowledges that such are a trade secret of Licensor, are valuable and confidential to Licensor, and that its use and disclosure must be carefully and continuously controlled. Title to the Software, and customizations, updates or corrections, if any, shall at all times remain with Licensor. Licensee shall keep the Software, and customizations, updates and/or corrections, if any, free and clear of any claims, liens and encumbrances attributable to the use or possession of the Software by Licensee. Any act of Licensee, whether voluntarily or involuntarily, purporting to create a claim of encumbrance shall be void. The Software is for the sole use of Licensee and shall be used only for the purpose set forth in this Agreement. Licensee shall treat the Software, and customizations, updates and/or corrections, if any, as confidential and proprietary, and shall protect it in the same manner that it protects the confidentiality of its own information. While this Agreement is in effect, or while Licensee has custody and possession of the Software, Licensee will not:

(i) provide or make available the Software to any person or entity other than employees of Licensee who have a need to know consistent with Licensee’s use thereof under this Agreement; or

(ii) create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering or otherwise, the source program or any part thereof from the object program or other information made available to Licensee pursuant to this Agreement.

Licensee agrees to promptly notify Licensor if it obtains information as to any unauthorized possession, use or disclosure of the Software by any person or entity, and further agrees to cooperate with Licensor in protecting Licensor’s proprietary rights.

4. INDEMNIFICATION AND LIMITATION OF LIABILITY

Licensee agrees to indemnify and hold Licensor harmless from and against all loss, cost, expense or liability (including reasonable attorney’s fees) arising out of a claim by a third party against Licensor based upon Licensee’s use of the Software. Licensee agrees to indemnify and hold Licensor harmless from any loss or damages to Licensor related to, or associated with Licensee’s customizations, updates and/or corrections to the Software. LICENSOR SHALL HAVE NO LIABILITY TO LICENSEE FOR ANY DAMAGE SUSTAINED BY LICENSEE AS A RESULT OF LICENSEE’S USE OF THE SOFTWARE, WHETHER SUCH DAMAGES WOULD ARISE AS A RESULT OF BREACH OF CONTRACT, TORT OR OTHERWISE. LICENSEE HAS TESTED THE SOFTWARE AND RELIES ON ITS OWN JUDGMENT IN UTILIZING IT. IN NO EVENT SHALL LICENSOR BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, LOSS OF GOOD WILL, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ATTORNEYS’ FEES, COURT COSTS OR INTERRUPTION OF BUSINESS, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY. The license fees reflect this allocation of risk and the limitations of liability herein. Licensor warrants that the use of the initially provided Software will not infringe any patent, copyright, or trademark in the United States or elsewhere, and Licensor shall indemnify and hold Licensee harmless against any and all losses, damages and expenses, (including attorney’s fees and other costs of defending any infringement action) which Licensee may sustain or incur as a result of a breach of this warranty. Obligations set forth herein are contingent upon the other party:

a) Providing the indemnifying party with prompt written notice of any action brought against the other party; and

b) The other party cooperating with the indemnifying party in the defense of any such action, and allowing the indemnifying party to control the defense and settlement of any such action at its expense;

Licensor shall have no obligation to defend any action or indemnify Licensee from damage if:

(i) Licensee, in providing customizations, updates and/or corrections to the Software, infringes upon the intellectual property of any third party.

(ii) Licensee is not using the most current version of the Software and the action would have been avoided without such combined use.

(iii) Licensee has modified the Software in combination with other Software and the action would have been avoided without such combined use.

(iv) Licensee is using the Software in combination with other Software and the action would have been avoided without such combined use

5. RELATIONSHIP OF THE PARTIES

The parties to this Agreement are affiliated companies and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

6. WAIVER

No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.

7. GOVERNING LAW

This Agreement shall be governed and interpreted by the laws of the State of Ohio and the State of Ohio shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder. Parties hereby consent to such personal and exclusive jurisdiction.

8. TERM

The term of this Agreement will begin on acceptance and is perpetual.

9. TERMINATION

This Agreement will be terminated, and the License forfeited where the Licensee has failed to comply with any of the terms of this Agreement or is in breach of this Agreement. On termination of this Agreement for any reason, the Licensee will promptly cease to use the Application or return the Application to Licensor.

10. ENTIRE AGREEMENT

This Agreement is the entire and exclusive agreement between Licensor and Licensee regarding this Application. This Agreement replaces and supersedes all prior negotiations, dealings, and agreements between Licensor and Licensee regarding this Agreement.

11. FORCE MAJEURE.

Licensor shall be responsible for delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, pandemic, civil or military authority, act of God, or act or omission of carriers.

12. SUGGESTIONS.

Licensor shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Application any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Licensee or its users relating to the operation of the Application.

13. NO THIRD-PARTY BENEFICIARIES.

The representations, warranties and other terms contained herein are for the sole benefit of the parties hereto and their respective successors and permitted assigns and shall not be construed as conferring any rights on any other parties or persons.