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Software License Agreement

This Software License Agreement (“Agreement”) is between you (“Licensee”) and Voyager Search, a California corporation with a place of business at 111 E. State Street, Suite 204, Redlands, California 92373 USA.

Attachment A contains definitions of capitalized terms used throughout this Agreement. Each section of this Agreement may include additional definitions that are used exclusively within that section.

1.0  GENERAL GRANT OF RIGHTS AND RESTRICTIONS

1.1 Grant of Rights. In consideration of Licensee’s payment of all applicable fees and in accordance with this Agreement, Voyager Search

  1. Provides Maintenance as set forth in this Agreement;
  2. Grants Licensee a nonexclusive, nontransferable right and license or subscription to access and use Voyager Search Software as set forth in the Documentation and applicable Ordering Documents; and
  3. Authorizes Licensee to use, copy, or prepare derivative works of Documentation supplied in digital format and thereafter reproduce, display, and redistribute the customized documentation only for Licensee's own internal use. Portion(s) of Documentation supplied in digital format merged with other software and printed or digital documentation are subject to this License Agreement. Licensee shall include the following copyright attribution notice acknowledging the proprietary rights of Voyager Search and its licensors:

"Portions of this document include intellectual property of Voyager Search and its licensors and are used under license. Copyright © [Licensee will insert the actual copyright date(s) from the source materials] Voyager Search and its licensors. All rights reserved.”

The grants of rights in this section (i) continue for the duration of the subscription or applicable Term or perpetually if no Term is applicable or identified in the Ordering Documents and (ii) are subject to additional rights and restrictions in this Agreement.

1.2 Third Party Components. The Software may contain components that are licensed from third parties ("Third Party Components"). Copyright notices and/or licenses for Third Party Components may be requested by contacting legal@voyagersearch.com. A current copy of the Third Party Components notices is included at http://www.voyagersearch.com/third-party-software-acknowledgements. All Third Party Components' license terms work in conjunction with this Agreement and together are complete statements of your rights and restrictions with respect to the Software.

1.3 Consultant or Contractor Access. Licensee may authorize its consultants and contractors to use Voyager Search Software exclusively for Licensee’s benefit. Licensee will be solely responsible for its consultants’ and contractors’ compliance with this Agreement and will ensure that each consultant or contractor discontinues use of the Voyager Search Software upon completion of the work for Licensee. Access to or use of Voyager Search Software by consultants or contractors that is not exclusively for Licensee’s benefit is prohibited.

1.4 Reservation of Rights. The Voyager Search Products are licensed and not sold. The Voyager Search Products are the copyrighted works of Voyager Search and its licensors which are protected by United States laws and applicable laws treaties and conventions regarding intellectual property or proprietary rights, inclusive of trade secrets.  Licensee agrees to use reasonable means to protect the Voyager Search Products from unauthorized use, reproduction, distribution, or publication.  Voyager Search and its licensors reserve all rights not specifically granted in this License Agreement.

1.5 Trial, Evaluation, and Beta Licenses.  Software acquired under a trial or evaluation license or under a Beta program are intended for evaluation and testing purposes only and not for commercial use. Any such use is at Licensee’s own risk, and the Software does not qualify for Maintenance. If Licensee does not convert to a purchased license or subscription prior to expiration or revocation of the evaluation term, Licensee may lose any Licensee Content and customizations made during the evaluation term. If  Licensee does not wish to purchase a license or subscription, Licensee should export such Licensee Content before the end of Licensee’s evaluation period.

2.0 SOFTWARE

2.1 License Types. Voyager Search licenses Software under the following license types. The Ordering Documents identify which license type(s) applies to the ordered Software:

  1. Licensed per Software Instance - a Software Instance is one copy of the software running in memory. A list of Software Licensed per Software Instance is available at: http://voyagersearch.com/license-types.
  2. Licensed per Software Usage - Software Usage Licenses allow the Licensee to utilize the necessary software needed to meet the Software Usage specified in the Ordering Documents. A list of Software Licensed per Software Usage is available at: http://voyagersearch.com/license-types.

2.2 Permitted Uses

2.2.a All License Types

  1. Licensee may make one (1) copy of Software for archival purposes; and, Licensee may make routine computer backups; and
  2. Licensee may customize Software using any (i) macro or scripting language, (ii) published application programming interface (API), or (iii) source or object code libraries, but only to the extent that such customization is described in Documentation.

2.2.b Licensed per Software Usage

  1. Licensee may install the necessary Flex Index needed to meet the Maximum Document Count as specified by the Ordering Documents;
  2. Licensee may distribute the Maximum Number of Documents across multiple Flex Indexes (including systems in different data centers or different geographic locations) so as the total number of documents in each Index does not exceed the Maximum Document Count specified in the Ordering Documents;
  3. License includes one (1) Testing Environment and one (1) Staging Environment for Non-Production use as long as the total number of documents in each environment does not exceed the Maximum Document Count Licensed in the Ordering Documents. In no event may the Non-Production environment be used in a Production Environment;

2.3 Uses Not Permitted

Except as expressly permitted in this Agreement, Licensee will not

  1. Sell, rent, lease, sublicense, lend, assign, or time-share Software. Licensee shall not act as a service bureau or Commercial Application Service Provider ( Commercial ASP) that allows third-party access to Software;
  2. Redistribute Software to unauthorized third parties, in whole or in part, including, but not limited to, extensions, components, JAR-files, WAR-files, EXEs or DLLs without the prior written approval of Voyager Search;
  3. Decompile, or disassemble Software;
  4. Make any attempt to circumvent the technological measure(s) that controls access to or use of Software, for example, Licensee may not extend Software by, among other things, loading or injecting into Software any non-Voyager Search add-ins, macros, or packages; modify the software registry settings; or adding features or functionality to Software that are not expressly described in Documentation as customizations;
  5. Use Software to transfer or exchange any material where such transfer or exchange is prohibited by intellectual property laws or any other applicable laws;
  6. Remove or obscure any Voyager Search or its licensors' patent, copyright, trademark, or proprietary rights notices contained in or affixed to the Products;
  7. Unbundle individual or component parts of Software for independent use;
  8. Publish or in any other way communicate the results of benchmark tests run on Beta Product without the prior written permission of Voyager Search or its licensors; and
  9. Use, incorporate, modify, distribute, provide access to, or combine Software in any manner that would subject any part of Software to open-source or open-database license terms that require any part of Software to be:
    1. Disclosed in source form to third parties;
    2. Licensed to third parties for the purpose of making derivative works; or
    3. Redistribute to third parties at no charge.

These restrictions will not apply to the extent that they conflict with applicable law or regulation.

3.0 TERM AND TERMINATION

3.1 Licensee may terminate this Agreement or any Software license or subscription at any time upon written notice to Voyager Search. Termination without cause does not entitle Licensee to receive any refund of fees paid or owed to Voyager Search for the license or subscription. Either party may terminate this Agreement or any license or subscription for a material breach that is not cured within thirty (30) days of written notice to the breaching party. Any licenses or subscriptions that survive termination of this Agreement continue under the terms of this Agreement.

3.2 If Voyager Search terminates this Agreement following Licensee’s material breach, then Voyager Search may also, at its discretion, terminate Licensee’s licenses or subscriptions. If Licensee terminates this Agreement for Voyager Search’s material breach or Licensee’s convenience, then Licensee may, at its discretion and subject to subsection 3.1, also terminate Licensee’s licenses or subscriptions to Voyager Search.

3.3 Upon any termination of a license or subscription, Licensee will stop using and uninstall, remove, and destroy all copies of affected Software in Licensee’s possession, including any modified or merged portions thereof, in any form, and execute and deliver evidence of such actions by providing a completed and signed copy of the Voyager Search Certificate of Software Removal available at: https://www.voyagersearch.com/pub/doc/CERTIFICATE-OF-SOFTWARE-REMOVAL-OR-TRANSFER.pdf.

4.0 LIMITED WARRANTIES AND DISCLAIMERS

4.1 Limited Warranties. Except as disclaimed below, Voyager Search warrants to Licensee that Software will substantially comply with the applicable Specifications. The warranty period for the Software offered under a Perpetual License runs for 90 days from the date of delivery. The warranty period for Software offered under a Subscription or Term License basis runs for the lesser of (i) the duration of the Subscription or Term or (ii) or 90 days from delivery.

4.2 Special Disclaimer. Third-Party Content; Data; hot-fixes; patches; updates; and trial, evaluation and Beta Products are delivered “as is” and without warranty of any kind.

4.3 General Disclaimer. Except for the express limited warranties set forth in this Agreement, Voyager Search disclaims all other warranties of any kind, whether express or implied, including, but not limited to, warranties or conditions of merchantability, fitness for a particular purpose, and noninfringement of intellectual property rights. Voyager Search is not responsible for any nonconformities caused by Licensee’s modifications of any Software other than as specified in the Documentation. Voyager Search does not warrant that Software, or Licensee’s operation of same, will be uninterrupted, error free, fault tolerant, or failsafe or that all non-conformities can or will be corrected.

4.4 Disclaimers

  1. Internet Disclaimer. Neither party will be liable for damages under any theory of law related to the performance or discontinuance of operation of the Internet or to regulation of the Internet that might restrict or prohibit the operation of Cloud Services.
  2. Third-Party Websites; Third Party Content. Voyager Search is not responsible for any third-party website or Third Party Content that appears in or is referenced by Voyager Search Products or Voyager Search websites, including www.voyagersearch.com. Providing links to a third-party websites and resources does not imply an endorsement, affiliation, or sponsorship of any kind.

4.5 Exclusive Remedy. Licensee’s exclusive remedy and Voyager Search’s entire liability for breach of the limited warranties in this section will be limited, at Voyager Search’s discretion, to first (i) repair, correct, or provide a workaround for the applicable Voyager Search Products; or if not commercially reasonable, (ii) return of the license fees paid by Licensee for the Software that does not meet Voyager Search’s limited warranty, provided that Licensee uninstalls, removes, and destroys all copies of the applicable Software and executes and delivers evidence of such evidence to Voyager Search as set forth in subsection 3.3.

5.0 MAINTENANCE

Voyager Search will provide Maintenance for Software in accordance with the Voyager Search Maintenance and Support policies and this Agreement .

6.0 LIMITATION OF LIABILITY

6.1 Disclaimer of Liability. Neither Licensee nor Voyager Search will be liable for any indirect, special, incidental, or consequential damages; lost profits; lost sales; loss of goodwill; costs of procurement of substitute goods or services; or damages exceeding the applicable license or current subscription fees paid or owed to Voyager Search for the Voyager Search Products giving rise to the cause of action.

6.2 The limitations and exclusions of liability in the preceding paragraph do not apply to Licensee’s infringement, misuse, or misappropriation of Voyager Search’s or Voyager Search’s licensors’ intellectual property rights, violations of the Export Compliance clause of this Agreement or any applicable law or regulation.

6.3 Applicability of Disclaimers and Limitations. Voyager Search has set its fees and entered into this Agreement in reliance on the disclaimers and limitations in this Agreement; the fees reflect an allocation of risk that is an essential basis of the bargain between the parties. These limitations will apply whether or not a party is aware of the possibility of any damage and notwithstanding any failure of essential purpose of any exclusive, limited remedy.

6.4 The foregoing disclaimers, limitations, limitations, and exclusions may be invalid in some jurisdictions and apply only to the extent permitted by applicable law or regulation in Licensee’s jurisdiction. Licensee may have additional rights that may not be waived or disclaimed. Voyager Search does not seek to limit Licensee’s warranty or remedies to any extent not permitted by law.

7.0 GENERAL PROVISIONS

7.1 Export Control Regulations. Licensee expressly acknowledges and agrees that Licensee shall not export, reexport, transfer, or release the Voyager Search Products in whole or in part, to (i) any U.S. embargoed country (or to a national or resident of any U.S. embargoed country); (ii) any person on the U.S. Treasury Department's list of Specially Designated Nationals; (iii) any person or entity on the U.S. Commerce Department's Table of Denial Orders; or (iv) any person or entity where such export, reexport, or provision violates any U.S. export control laws or regulations including, but not limited to, the terms of any export license or licensing provision and any amendments and supplemental additions to U.S. export laws as they may occur from time to time.

7.2 Verification. To ensure compliance with this Agreement, the Software automatically communicates with Voyager Search’s servers daily. This information includes the number of documents indexed and the number of indexing agents used. The Software sends this information approximately once a day to Voyager Search servers. Specific information communicated to Voyager Search is described at http://voyagersearch.com/usage-sample.

To opt out, Licensee may change the settings in the Software configuration dialog. Notwithstanding, should Licensee opt out, Licensee will be subject to audit as set forth in Section 7.3.

7.3 Audit. Voyager Search may audit Licensee’s Software Usage, no more often than once quarterly, to ensure Licensee compliance with this Agreement and the applicable Ordering Documents. Any such audit will be conducted during regular business hours at Licensee’s facilities and will not unreasonably interfere with Licensee’s business and will comply Licensee’s reasonable security procedures. Licensee will provide Voyager Search with reasonable access to all relevant records and facilities reasonably necessary to conduct the audit. If an audit reveals that Licensee has exceeded the Software Usage during the period audited, then Voyager Search will invoice Licensee, and Licensee will promptly pay Voyager Search any underpaid fees based on Voyager Search’s price list in effect at the time the audit is completed. If the excess usage exceeds five percent (5%) of the Software Usage, then Licensee will also pay Voyager Search reasonable costs of conducting the audit. This Section 7.2 will survive expiration or termination of this Agreement for a period of three (3) years.

7.4 Taxes and Fees, Shipping Charges. Fees quoted to Licensee are exclusive of any and all taxes or fees, including, but not limited to, sales tax, use tax, value-added tax (VAT), customs, duties, or tariffs, and shipping and handling charges. Licensee shall be solely responsible for payment of any such taxes, fees or shipping charges that may become due.

7.5 No Implied Waivers. The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.

7.6 Severability. The parties agree that if any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make the intent of the language enforceable.

7.7 Successor and Assigns. Licensee shall not assign, sublicense, or transfer Licensee's rights or delegate its obligations under this Agreement without Voyager Search’s prior written consent, and any attempt to do so without consent shall be void. This Agreement shall be binding upon the respective successors and assigns of the parties to this Agreement. Notwithstanding, a government contractor that has acquired Software under contract to the government may assign this Agreement to its government Licensee upon written notice to Voyager Search, provided the government Licensee assents to the terms of this Agreement.

7.8 Survival of Terms. The provisions of Sections 1.2, 1.4, 3, 4, 6, 7 and Attachment A of this License Agreement shall survive the expiration or termination of this License Agreement.

7.9 US Government Licensee. The Software provided to Licensee under this Agreement are commercial items developed at private expense. If Licensee is a US government entity or US government contractor, Voyager Search licenses or provides subscriptions to Licensee in accordance with this Agreement under FAR Subparts 12.211/12.212 or DFARS Subpart 227.7202. Software is subject to restrictions, and this Agreement strictly governs Licensee’s use, modification, performance, reproduction, release, display, or disclosure of Software. Agreement provisions that are inconsistent with federal regulation will not apply. A US government Licensee may transfer Software to any of its facilities to which it transfers the computer(s) on which it has installed Software licensed on a Perpetual basis. If any court, arbitrator, or board holds that a US government Licensee has greater rights to any portion of the Software under applicable procurement law, such rights will extend only to the portions affected.

7.10 Governing Law. This Agreement is not subject to the United Nations Convention on Contracts for the International Sale of Goods.

  1. Government Entities. If Licensee is a government entity, the applicable laws of Customer’s jurisdiction govern this Agreement.
  2. Non-government Entities. US federal law and the law of the State of California exclusively govern this Agreement, excluding their respective choice of law principles.

7.11 Dispute Resolution. The following dispute resolution processes will apply:

  1. Equitable Relief. Either party may seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction without the requirement of posting a bond or proving injury as a condition of relief.
  2. US Government Agencies. This Agreement is subject to the Contract Disputes Act of 1978, as amended (41 USC 601-613).
  3. Other Government Entities. Voyager Search will comply with mandatory dispute resolutions under applicable law.
  4. Arbitration. Except as set forth above, the parties will submit to binding arbitration to resolve any dispute arising out of or relating to this Agreement that cannot be settled through negotiation. If Licensee is in the United States or one of its territories or outlying areas, the Commercial Arbitration Rules of the American Arbitration Association will govern the proceedings. If Licensee is outside of the United States, the Rules of Arbitration of the International Chamber of Commerce will govern the proceedings. The parties will select a single arbitrator in accordance with the applicable arbitration rules. The language of arbitration will be English. Arbitration will be at an agreed-upon location. Either party will, at the request of the other, make available documents or witnesses relevant to the major aspects of the dispute.

7.12 Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous license agreements, understandings, and arrangements between the parties relating to such subject matter. Additional or different terms included with an order or other of Licensee shall not be binding upon Voyager Search. Any modification(s) or amendment(s) to this Agreement must be in writing and signed by each party.

ATTACHMENT A

DEFINITIONS

Beta” means any alpha, beta, or other prerelease version of Software.

“Cloud Services” means any internet based resources that the Software utilizes.

Commercial ASP Use” means use as a commercial application service provider, that is, to generate revenue by providing access to Software through a Value-Added Application, for example, by charging a subscription fee, service fee, or any other form of a transaction fee or by generating more than incidental advertising revenue.

Content” means data, images, photographs, animations, video, audio, text, maps, databases, data models, spreadsheets, user interfaces, graphics components, icons, software, web services and other resources.

Data” means any commercial available digital dataset(s) including, but not limited to, geographic vector data, raster data reports, or associated tabular attributes, that Voyager Search bundles with certain Voyager Search Software or offers independently.

Document” means a single  item in the Flex Index.

Documentation” means all user reference documentation that Voyager Search provides with Software.

Flex Index (or Index)” mean an enterprise search platform with major features, including full-text search;  geospatial search; and faceted search, across structured and unstructured documents. The platform provides highly-scalable, high-performance and fault tolerant search.

“Indexing Agents” means at least one (1) Indexing Agent is required for every deployment of the Voyager Flex Index. This included Non-Production (Development and Staging) and Production environments. Additional indexing agents can be purchased to scale indexing performance based on customer needs.

Licensee Content” means any Content that Licensee provides, uses, or develops in connection with Licensee’s use of Voyager Search Products, included Value-Added Applications. Licensee Content excludes any feedback, suggestions, or requests for improvements Licensee provides to Voyager Search.

Maintenance” means a subscription program that Voyager Search provides and that entitles Licensee to Software updates and other benefits such as access to technical support. For Software Licensed per Software Usage, Maintenance is included.

Maximum Number of Documents” means the total number of Documents in the Index.

Non-Production” means environments used exclusively for purposes other than Production, for example:

  • QA/Testing: an environment where developers, dedicated testers, or other non-business users test new code and applications (which may or may not have been developed by the customer).
  • Staging: an environment for testing that exactly resembles the production environment. this is a complete but independent copy of the production environment. Staging provides a true basis for quality assurance (QA) testing because it precisely reproduces what is in production.
  • Application Development: an environment where software application developers develop code against the Index.

Ordering Documents” means either a Voyager Search Quote or Proposal executed by Licensee in lieu of a Purchase Order or a Licensee Purchase Order.

Production” means the setting where Software is put into operation for Licensee’s intended uses by end users. This includes environments that are used for Production at least some of the time, such as a server that is rotated into production during peak periods of activity.

Products” means Software and Documentation.

Software” means any proprietary commercial off-the-shelf software, excluding Data, accessed or downloaded from a Voyager Search authorized website and issued a license key, including backups, updates, service packs, patches, hot fixes, or permitted merged copies.

Software Usage” means a limit on capabilities based on the Maximum Number of Documents and Indexing Agents.

Specification” means the Documentation.

Third-Party Content” means any Content that Licensee may obtain from a third-party website or that persons other than Voyager Search employees, suppliers, or contractors may directly contribute to a Voyager Search website.

“Value-Added Application(s)” means an application developed by Licensee for use in conjunction with the authorized use of any Software or Data.

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