Introduction > License Agreement

Overland Software License Agreement Effective 8 April 2016

This Software License Agreement (Agreement) is made effective as of the date of purchase or first use of Belt Analyst™, between the Licensee and Overland Conveyor Company, Inc., a division of thyssenkrupp Industrial Solutions (USA) Inc with offices at 1536 Cole Blvd, Suite 150, Lakewood, CO, 80401, ("Overland").

This Agreement pertains to Overland's software, called Belt Analyst™ and all associated modules, including object code and documentation. Overland has the sole and exclusive ownership of all right, title, and interest in and to Belt Analyst™ source code, object code and documentation, and all copies thereof, and all modifications and enhancements thereto (including ownership of all copyrights and other intellectual property rights pertaining thereto), subject only to the license expressly granted to the Licensee herein. This Software License Agreement does not provide the Licensee with title or ownership of Belt Analyst™, but only a right of limited use. From time to time, at its sole discretion, Overland Conveyor Co., Inc may provide enhancement, updates or newer versions of the software on its then standard terms and conditions thereof. This agreement shall apply to such enhancements.

In exchange for the non-exclusive, non-transferable license to use Belt Analyst™ and subject to the terms and provisions of this agreement, Overland and the Licensee agree as follows:

I. PAYMENTS

The Licensee agrees to pay Overland the then current fees for Belt Analyst™, and for any additional licenses required for use of Belt Analyst™ on additional computers.

II. LIMITED USE LICENSE

A. Overland grants Licensee the right to use one copy of the enclosed Belt Analyst™ software program, which includes computer software and may include associated media, printed materials and electronic documentation on a single terminal connected to a single computer (that is, with a single CPU) or in a networked environment according to the product purchased.

B. The Licensee may not:

1. Network the software or otherwise use it on more than one computer terminal at the same time unless the networked version is purchased;

2. Allow any third party to use Belt Analyst™ without a non-disclosure agreement approved by Overland;

3. Sub-license or lease Belt Analyst™ to another party; or

4. Otherwise transfer or permit use of the software in any way without prior written consent of Overland; or

5. Reverse engineer, de-compile, or disassemble the software.

C. Overland may at reasonable times inspect the Licensee's premises and equipment to verify that all of the terms and conditions of this Agreement are being observed.

III. PROGRAM CODE AND DOCUMENTATION

The licensed products shall be provided to Licensee and used strictly in machine-readable object code format. Licensee shall have no right of access or use of the Source Code.

IV. NO TRANSFER OF RIGHTS

There is no transfer to the Licensee of any title or ownership of any component of Belt Analyst™ or any patent, copyright, trade secret, trade name, trademark or other rights related to Belt Analyst™, regardless of the form that original or other copies exist in. The Licensee shall exercise the same degree of care in protecting Overland's rights under this Agreement as the Licensee exercises in protecting its own rights involving similar material.

V. COPYING

A. The Licensee may make copies of Belt Analyst™ software for nonproductive backup purposes only, provided that the Licensee reproduce and include Overland's copyright notice on each backup copy. Backup copies must be stored in a safe and secure location. The Licensee must maintain an accurate record of the location of backup copies at all times.

B. Documentation that accompanies Belt Analyst™ is copyrighted and the sole property of Overland, and is provided solely to support the authorized use of Belt Analyst™. The Licensee may not use, copy, modify or distribute such material or any copy, adaptation, transcription or merged portion thereof, except as expressly authorized by a separate written agreement with Overland.

VI. COPYRIGHTS

Overland represents and warrants to the Licensee that Belt Analyst™ software, names and marks and documentation are either patented, copyrighted, trademarked, or otherwise proprietary to Overland. The Licensee agrees to never remove any such copyrights, trademark notices, other notices and logos from Belt Analyst™ software and documentation.

VII. TRANSFER OR ASSIGNMENTS

The Licensee may not transfer or assign this License, Belt Analyst™ object code, sample programs, or documentation to another party without written approval of Overland. No transfer will be approved unless it includes updates and all prior versions. Provided, however, nothing contained herein shall operate to prevent the Licensee from selling, assigning or transferring this License Agreement to any person or other entity that acquires ownership or management control of the Licensee. The transferee shall agree in writing, if so requested by Overland, to be bound by the duties and obligations of the transferring party (the Licensee) under this License Agreement.

VIII. TERMINATION

This License is effective until terminated. The Licensee may terminate this License Agreement by providing written notice to Overland and destroying the Belt Analyst™ software, documentation and all copies thereof. This License will terminate as provided herein if the Licensee fails to comply with any provision of this License or fails to pay license fees in the amounts and according to terms and conditions shown in Schedule A. This Agreement may be terminated by either party upon written notice should the other party fail substantially to perform in accordance with its terms through no fault of the party initiating the termination. However, prior to termination under this paragraph, the party desiring to terminate shall first provide written notice specifying the alleged nonperformance and allowing the non-performing party a reasonable time to perform. In the event of nonpayment of money by the Licensee, a reasonable time for performance shall be seven calendar days following the Licensee's receipt of a certified letter from Overland. In the event of other types of nonperformance, the non-performing party shall be allowed such time as is under the circumstances reasonably necessary to allow it to perform. Upon termination, the Licensee shall destroy all copies of Belt Analyst™ software and documentation. After termination, all provisions regarding ownership, warranty, confidentiality, indemnity, liability and limits thereon shall survive.

IX. LIMITED WARRANTY, DISCLAIMER OF WARRANTY, AND LIMITATION OF REMEDIES AND LIABILITIES.

A. Overland warrants and represents to the Licensee that:

1. Overland is the owner of Belt Analyst™ or otherwise has the right to grant to the Licensee this license to use Belt Analyst™;

2. No applicable statute or regulation has been or will be violated by the licensing of Belt Analyst™ to the Licensee under this Agreement;

3. There is currently no suit by any third party based on an alleged violation of Overland's right to license Belt Analyst™; and

4. Upon delivery by Overland and acceptance by the Licensee, Belt Analyst™ will substantially conform to the Reference Manuals provided by Overland.

B. OVERLAND DOES NOT WARRANT THAT BELT ANALYST™ OR ANY OTHER DELIVERABLES PROVIDED HEREUNDER WILL MEET THE LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF BELT ANALYST™ WILL BE UNINTERRUPTED OR ERROR FREE. OVERLAND MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, ACCURACY, AND INTEGRATION.

C. THE PARTIES ACKNOWLEDGE THAT THE FOLLOWING PROVISIONS HAVE BEEN NEGOTIATED BY THEM AND REFLECT A FAIR ALLOCATION OF RISK. THIS WARRANTY AND DISCLAIMER GIVES THE LICENSEE SPECIFIC LEGAL RIGHTS AND THE LICENSEE MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE. IF BELT ANALYST™ FAILS TO COMPLY WITH THE WARRANTIES SET FORTH ABOVE, OVERLAND WILL MAKE A REASONABLE EFFORT TO CORRECT PROGRAM ERRORS WITHIN A REASONABLE PERIOD OF TIME. IF OVERLAND IS UNABLE TO CORRECT THE PROGRAM ERRORS, OVERLAND WILL REFUND A FAIR PORTION OF THE SOFTWARE LICENSE FEES THE LICENSEE PAID OVERLAND WITHIN THE IMMEDIATELY PRECEDING TWELVE MONTHS. SUCH REFUND WILL FULLY SATISFY THE LICENSEE'S CLAIMS FOR SOFTWARE FAILURE. ANY REPLACEMENT SOFTWARE WILL BE WARRANTED ACCORDING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE REMEDY STATED HEREIN IS IN LIEU OF ALL OTHER REMEDIES.

D. THIS SOFTWARE AND THE INFORMATION CONTAINED IN THE ACCOMPANYING DATABASE HAVE BEEN PREPARED IN ACCORDANCE WITH RECOGNIZED ENGINEERING PRINCIPALS. WHILE IT IS BELIEVED TO BE ACCURATE, THIS SOFTWARE AND DATABASE INFORMATION SHOULD NOT BE USED OR RELIED UPON FOR ANY SPECIFIC APPLICATION WITHOUT COMPETENT PROFESSIONAL EXAMINATION AND VERIFICATION OF ITS ACCURACY, SUITABILITY, AND APPLICABILITY AND SAFETY BY A REPUTABLE CONVEYOR ENGINEER. OVERLAND, FOR ITSELF AND ITS RESPECTIVE AGENTS AND EMPLOYEES, DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, WITHOUT LIMITATION, THAT THE SOFTWARE WILL PRODUCE RESULTS THAT ARE WITHOUT RISK OF INJURY ANY PERSON OR ENTITY. LICENSEE MUST INDEPENDENTLY ASSURE ITSELF THAT USE OF THE SOFTWARE PRODUCES RESULTS THAT ARE SAFE IN ACTUAL USE.

E. EXCEPT FOR THE DUTY TO INDEMNIFY PROVIDED IN SECTION X, OVERLAND SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OF THE LICENSEE, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, REVENUE, PROFITS, CUSTOMERS, OR GOOD WILL. OVERLAND'S LIABILITY FOR A DEFAULT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID BY THE LICENSEE TO OVERLAND WITHIN THE PAST TWELVE MONTHS.

F. NO WRITTEN OR ORAL INFORMATION OR ADVICE GIVEN BY OVERLAND DEALERS, DISTRIBUTORS, AGENTS, OR EMPLOYEES WILL IN ANY WAY INCREASE OR MODIFY THE SCOPE OF THE WARRANTIES CONTAINED IN THIS AGREEMENT.

X. INDEMNIFICATION

A. Overland shall indemnify, defend and hold harmless the Licensee, its shareholders, directors, officers, and employees from any and all claims for damages, losses, lawsuits, fines, penalties, costs and expenses of third parties relating to or arising out of any claim that the use of Belt Analyst™ by the Licensee under this Agreement infringes on any United States patent, copyright, trademark, or other proprietary right, provided that the Licensee gives Overland prompt written notice of such suits and permits Overland to control the defense thereof. In the event, as a result of any claim or infringement which Overland has an obligation to defend in accordance with this section, Licensee is enjoined from using Belt Analyst™, or if Overland believes Belt Analyst™ is likely to become the subject of such a claim of infringement, Overland, at its option and expense, may procure the right for the Licensee to continue to use Belt Analyst™ or replace or modify Belt Analyst™ so as to make it non-infringing, provided that the performance thereof is not adversely affected in a material manner. If Overland, in its sole discretion, determines that neither of these options is commercially reasonable, Overland may terminate the license granted herein with respect to the affected software and, as part of its obligations pursuant to this section, refund to the Licensee upon return of the affected software, a fair portion of the license fees the Licensee paid Overland for the affected software within the past twelve months.

B. The Licensee shall, at all times defend, indemnify and hold harmless Overland, its officers, directors, shareholders, employees, successors and assigns from and against any and all actions, suits, liabilities, prosecutions, penalties, fines, losses, damages, costs, charges, attorneys' fees and all other expenses relating to or arising from any and all claims which are based upon or due to: any failure by the Licensee to comply with any term or provision of this Agreement; any breach, error or inaccuracy in any representation or warranty made by the Licensee herein; any negligence or willful misconduct by the Licensee, its officers, directors or employees; or any use of the software or results or output of the software which results in injury of any kind to any person or entity.

XI. INSTALLATION AND IMPLEMENTATION

A. Licensee is specifically responsible for the following administrative functions associated with the use of Belt Analyst™:

1. Computer hardware maintenance;

2. Operating system maintenance;

3. Administration and allocation of disk space and

4. Creation and execution of a process for regular database backups;

5. System security;

6. All software that must interact with or interface with Belt Analyst™.

B. Any licensed product shall be deemed accepted by Licensee unless Licensee notifies Overland in writing of a material defect in the licensed product within ten (10) business days after installation of the product. The Licensee may delete the program by executing the "Delete License" command and returning the program generated code proving that such deletion has been performed to Overland within this 10 day period. Refunds after that time are given in the sole discretion of Overland. If material defects are discovered during this time, Licensee shall provide a written "punchlist" identifying the specification at issue and explaining why the Licensed Product does not meet the specification. Overland shall have a reasonable opportunity to correct, replace or provide functional "workarounds" for all punchlist items or to commence corrective action reasonably acceptable to Licensee and proceed with reasonable diligence to completion. Upon notice of correction, the 10 day test period shall be repeated. If Licensee makes substantial beneficial use of the Licensed Product at any time, it shall conclusively be deemed accepted and any outstanding punchlist items shall be addressed to the extent provided under Section IX ("Warranties") or separate maintenance agreement.

C. During the term of this Agreement, Overland shall provide telephone assistance only regarding the use and operation of the then current version of Belt Analyst™ to the Licensee's Belt Analyst™ system manager and one other user designated in writing by the Licensee from Monday through Friday, from 9 AM to 5 PM Mountain Time, except national holidays. The Licensee may change the designated system manager and primary user at any time by providing written notice to Overland. Overland shall have no obligation to provide this support for any version of Belt Analyst™ other than the then current version.

D. All additional support or training shall be by separate agreement between Overland and Licensee and is not included in the base price of Belt Analyst™ Standard, Pro or Pro+.

XII. ENHANCEMENTS

Overland may at any time replace, modify, alter, improve, enhance or change Belt Analyst™ without prior notice.

XIII. CONFIDENTIALITY

The Licensee agrees that it not disclose confidential information of the Overland to any person or entity outside Licensee's organization without first obtaining written consent of Overland. The confidential information of Overland includes but is not limited to Belt Analyst™ and Belt Analyst™ help files. These obligations do not include information which may become publicly available. Licensee may not use Overland's in advertising or for other publicity purposes without the Licensee's prior written consent. Such approval will not be unreasonably withheld. Licensee agrees that it will not disclose the fees or terms of this Agreement to any person or entity outside its organization without first obtaining written consent from Overland.

XIV. THIRD PARTY SOFTWARE

Licensee agrees to separately license all third party software necessary to the operation of Belt Analyst™. The Licensee is responsible for executing and complying with the separate license agreements associated with these packages.

XV. INSTALLATION

A. The Licensee is responsible for:

1. Determining whether Belt Analyst™ will achieve its objectives;

2. Installing the computer hardware, and third party software, as described in Schedules B and C and operating the computer, operating system and modem thereafter;

3. Assigning personnel who will operate Belt Analyst™; and

4. Establishing backup procedures in the event of a defect or malfunction that renders Belt Analyst™ or the computer nonoperational.

B. The Licensee agrees that Overland is not responsible for installation delays caused by events or circumstances beyond its reasonable control.

XVI. GENERAL PROVISIONS

A. Notices. All notices shall be sent by hand delivery or by registered or certified mail, return receipt requested, with first-class postage prepaid to the current address of the party.

B. Invalid or Unenforceable Provisions. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted.

C. Benefit and Burden. This Agreement shall inure to the benefit of, and shall be binding upon, the parties, their legatees, distributees, estates, executors, administrators, personal representatives, successors and assigns, and other legal representatives.

D. Gender. The use of any gender herein shall be deemed to be or include the other genders and the use of the singular herein shall be deemed to be or include the plural, and vice versa, where appropriate.

E. Changes; Waiver. No change or modification of this Agreement shall be valid unless it is in writing and signed by all the parties. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the person against whom it is sought to be enforced. The failure of any party at any time to insist upon strict performance of any part of this Agreement shall not be construed as a waiver or relinquishment of the right to insist upon strict performance of the same or any other part of this Agreement at a future time.

F. Entire Agreement. This Agreement sets forth all of the promises, agreements, conditions, understandings, warranties, and representations of the parties with respect to the Agreement and any other matters set forth herein, and there are no promises, agreements, conditions, understandings, warranties, or representations, oral or written, express or implied, among them with respect to such Agreement or such other matters except as set out in the Agreement. All prior agreements among the parties on the subject of the Agreement are revoked. This Agreement is an integration of all prior agreements or understandings.

G. Governing Law and Choice of Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. All actions arising under this Agreement or connected with it in any way, whether law or equity, tort or contract, shall be brought and adjudicated in a court of competent jurisdiction in Littleton Colorado.

H. Headings. The headings, subheadings, and other captions in this Agreement are for convenience and reference only and shall not be used in interpreting, construing, or enforcing any of the provisions of this Agreement.

I. Damages. In the event any remedy herein is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth herein shall remain in full force and effect.

J. Compliance with Law. The Licensee is responsible for complying with all local, state and federal laws pertaining to the use and disclosure of any data.

K. Independent Contractor Status. Each party and its people are independent contractors in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. Each party shall remain responsible, and shall indemnify and hold harmless the other party, for the withholding and payment of all Federal, state and local personal income, wage, earnings, occupation, social security, worker's compensation, unemployment, sickness and disability insurance taxes, payroll levies or employee benefit requirements (under ERISA, state law or otherwise) now existing or hereafter enacted and attributable to themselves and their respective people.

L. Security, No Conflicts. Each party agrees to inform the other of any information made available to the other party that is classified or restricted data, agrees to comply with the security requirements imposed by any state or local government, or by the United States Government, and shall return all such material upon request. Each party represents and warrants that its participation in this Agreement does not conflict with any contractual or other obligation of the party or create any conflict of interest prohibited by the U.S. Government or any other government and shall promptly notify the other party if any such conflict arises during the Term.

M. Compliance with Export Regulations. Licensee has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold Licensor harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. Licensee shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce. This provision and the assurances made herein shall survive termination of this Agreement.

XVII. NOTICES

Notices regarding this Agreement should be delivered in writing to:

From the Licensee to Overland:

Overland Conveyor Company, Inc.
1536 Cole Blvd, Suite 150
Lakewood, CO 80401

XVIII. ACCEPTANCE OF AGREEMENT

This Agreement is accepted by Licensee by clicking "Accept," or installing or using the software in any way.

Belt Analyst™ License Agreement

Belt Analyst™ License Agreement