This Equilibrium End User Software License Agreement (the “Agreement”) is entered into by and between you (an individual or an entity), the end user (“You”), and CompanionCabinet Software LLC (d/b/a BreakFront) ("CCS").  This Agreement authorizes You to use the BreakFront Equilibrium Software (in object code format only) (the “Software”) under the terms and conditions set forth below.  This is an agreement on end user license rights and not an agreement for sale.  CCS continues to own the copy of the Software.


Read this Agreement carefully before using the Software.  By clicking on the "I Accept" button and/or using the Software, You agree to the terms and conditions of this Agreement.  If You do not agree to all of the terms and conditions of this Agreement, promptly click on the "Decline" or "I Do Not Accept" button.  YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.


1.             LICENSE GRANT.  Subject to the terms and conditions of this Agreement, CCS hereby grants to You, and You hereby accept from CCS, a non-exclusive, non-transferable and non-sublicensable license to use the Software and the Software documentation (collectively, the “Licensed Materials”) solely for Your internal business use.


2.             RESTRICTIONS ON USE.


2.1          Limited Use.  Your rights to the Software are expressly limited to the use of the Software for Your internal business purposes.  The Software is hosted by CCS on its servers and You shall have no right to a copy of the Software or to load the Software on Your servers.  You may only access the Software via the website address provided by CCS.  Unless otherwise approved by CCS in writing, You shall permit only Your employees and authorized third party consultants to use the Software, and You shall be exclusively responsible for the supervision, management, operation and control of Your use of the Software.


2.2          Reverse Engineering.  You shall not translate, reverse engineer, decompile, recompile, update or modify all or any part of the Software or merge the Software into any other software, and You shall prevent, and not permit, all third parties from doing any of the foregoing.


2.3          Copying.  You may not copy, reproduce or duplicate the Software or any tangible media containing the Software, in whole or in part.  You shall prevent, and not permit, any third parties from copying, reproducing or duplicating the Software.


2.4           Exporting Files.   The Software includes an accounting export feature that permits You to export and download Your sales orders and purchase orders (the “Export Feature”).   You are permitted to use the Export Feature to export and download Your sales orders and purchase orders to computers and other electronic devices that You own or lease.   However, You are prohibited from sending, and You agree not to send, any sales orders or purchase orders that You export or download using the Export Feature to any third-party without CCS’s written approval.


3.             CONFIDENTIALITY.  In connection with this Agreement, one party may have access to certain confidential and proprietary information of the other party (the “Confidential Information”).  Except as otherwise provided in this Agreement, during and after the term of this Agreement, the parties agree to hold each other’s Confidential Information in confidence using the same degree of care that it uses to protect its own Confidential Information (but in no event less than a reasonable degree of care).  Confidential Information shall be limited to any written information that is clearly identified as confidential, to the Licensed Materials, and to any information that the recipient should reasonably believe is confidential to the discloser.  A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third-party without restriction on disclosure; (d) is independently developed by the other party without the use of the disclosing party’s Confidential Information; or (e) is required to be disclosed pursuant to governmental or judicial process, provided that the notice of such process is promptly provided to discloser in order that it may have every opportunity to intercede in such process to contest such disclosure. Notwithstanding the foregoing, the parties shall have the right to use any ideas, information and understandings retained in the unaided memory of the receiving party’s employees as a result of their review, evaluation, testing or access to the information of the disclosing party. An employee’s memory is unaided if the employee has not intentionally memorized the subject information for the purpose of retaining and subsequently using or disclosing it. 




4.1          Ownership of Intellectual Property.  As between You and CCS, CCS owns, and will retain ownership of, all right, title and interest in and to the Licensed Materials and derivative works made therefrom or based thereon, including without limitation all underlying intellectual property or other proprietary rights therein, whether in the nature of patent, copyright, trade secret, trade dress, trademark or other legally recognized rights, and You shall not have or acquire any right, title or interest in or to the Licensed Materials or any derivative work thereof, except as expressly granted herein.  You shall not at any time attack the title or any of CCS’s rights in or to the Licensed Materials or any derivative work thereof, nor shall You attack the license granted in this Agreement.


4.2          Indicia of Ownership. You shall not remove from, alter, modify or deface any copyright notice, trademark, service mark, logo, name, decal or imprint affixed to or on the Licensed Materials including, but not limited to, those which identify CCS as the author, owner or source of origin of the Licensed Materials.  You shall not take any actions or fail to take any actions which are likely to confuse anyone into believing that CCS is not the author, owner and source of origin of the Licensed Materials.


5.             YOUR DATA.  With respect to all data that You input or download into the Software (the “Data”), You hereby grant CCS a non-exclusive, royalty-free and perpetual license to use the Data and to disclose the Data to third-parties; provided, however, CCS’s use of the Data shall comply with all applicable laws and CCS shall not disclose the Data to any third-party in a manner in which the third-party can identify You as the source of the Data. You represent and warrant to CCS that You have the right to grant the license granted pursuant to this Section 5 and that CCS’s use of the Data will not violate the rights of any third-party.


6.             LIMITED WARRANTY.  For a period of 60 days after the date that You first have the right to use the Software, CCS warrants that the Software will operate in all material respects with its user documentation.  If the Software does not operate in all material respects with its user documentation, and provided You notify CCS in writing within the 60-day warranty period, CCS shall make commercially reasonable efforts to promptly repair or replace the non-conforming Software without charge.  If, after a reasonable opportunity to cure, CCS does not repair or replace the non-conforming Software, You shall have the right to terminate this Agreement and receive a refund of the license fee that You paid for the Software.   CCS shall have no liability under this Agreement for the failure of the Software to conform with the warranty in this Section 6 if such failure is the result of (a) Your  negligence or misuse of the Software or failure to comply with the user documentation, (b) Your modification or other change of the Software, other than changes made or authorized by CCS, (c) Your failure to run the Software using equipment, software and an operating system meeting the minimum requirements provided by CCS, (d) failure or breakdowns of any third-party hardware or software or (e) the combination of the Software with any other system, equipment, hardware or software.  The remedy described in this Section 6 is Your sole and exclusive remedy for breach of the warranty made in this Section 6.  THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.   




8.             TERM AND TERMINATION. 


8.1          Term.  This Agreement shall commence on the date hereof and continue for the initial term set forth in the quote document signed by You and CCS.  After the initial term, this Agreement shall automatically renew for successive 12-month terms unless either party provides the other party with written notice of non-renewal at least 30 days prior to the end of the then-current term.


8.2          Termination.  This Agreement may be terminated as follows:


(a)           If You fail to make any payment due to CCS, then CCS may immediately terminate this Agreement with or without notice.


(b)           If a party materially breaches this Agreement and fails to cure the breach within 30 days after receiving written notice describing the breach from the non-breaching party, then the non-breaching party may terminate this Agreement. 


(c)           In the event a party hereto (i) becomes or is declared insolvent or bankrupt, whether voluntarily or involuntarily, (ii) is the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, (iii) makes an assignment for the benefit of all or substantially all of its creditors, or (iv) enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, then the other party hereto may, by giving written notice thereof to such insolvent or bankrupt party, terminate this Agreement as of a date specified in such notice of termination.


(d)           CCS may immediately terminate this Agreement if You use the Software in any manner not permitted under the terms of this Agreement, unless You have received prior written consent to do so from CCS.


(e)           If You cease to subscribe to and pay for CCS’s maintenance and support services for the Software, then CCS may terminate this Agreement.


8.3          Obligations Upon Termination.  Upon the termination of this Agreement, You shall immediately cease using the Software.  If CCS has the right to terminate this Agreement, then it may immediately terminate Your license and access to the Software via electronic means.


9.             INFRINGEMENT. 


9.1          Infringement by Third-Parties.  You shall promptly notify CCS in the event that You discover any apparent infringement, misappropriation or other violation of CCS’s rights in the Software.  Any and all action taken to enforce CCS’s legal rights against infringement, misappropriation or other violation of CCS’s rights shall be within CCS’s sole discretion.  You agree to provide all reasonable assistance to CCS in investigating and pursuing any such action against any such infringement, misappropriation or other violation of CCS’s rights in the Software.


9.2          Third-Party Infringement Claims.  If a third-party claims that Your use of the Software infringes any United States trademark, patent or copyright, You must promptly notify CCS in writing.  If so notified, CCS will, at its sole cost, defend You against such claim if You reasonably cooperate with CCS and allow CCS to control the defense and all related settlement negotiations, and then CCS will indemnify You from and against any damages finally awarded for such infringement.  If an injunction is sought or obtained against Your use of the Software as a result of a third-party infringement claim, CCS shall, at its sole option and expense, and in a commercially reasonable timeframe, either (a) procure for You the right to continue using the infringing portion of the Software, (b) replace or modify the infringing portion of the Software with equivalent functionality so that it does not infringe, or, if neither (a) or (b) is commercially feasible within such reasonable timeframe, (c) allow You to terminate this Agreement and receive a pro rata refund of the license fee paid for the Software based on a three-year amortization period.  However, CCS shall have no liability for any third-party claim of infringement if the claim results from Your failure to comply with this Agreement or the Software documentation, Your acts or omissions, Your modification of the Software or Your combination of the Software with any of Your own hardware or software.  This Section 9.2 constitutes the entire liability of CCS, and Your sole and exclusive remedy with respect to, any third-party claims of infringement.


10.          FEES.  You shall pay CCS the license, maintenance, services and other fees set forth in the proposal or other document signed by You and CCS (the “Fee Proposal”).  If You and CCS have not signed a Fee Proposal, or if the term of Your Fee Proposal has expired, then You shall pay CCS its then-existing license, maintenance and services fees.


11.          MISCELLANEOUS.


11.1        Notices.  Any notices required or permitted to be given to CCS under this Agreement shall be emailed to:


11.2        Governing Law.  This Agreement shall be governed, interpreted and enforced under the laws, other than choice of laws rules, of the State of North Carolina.


11.3        Jurisdiction and Venue.  Unless both parties otherwise agree in writing, the exclusive venue and jurisdiction for any controversy, dispute or claim arising out of or relating to this Agreement shall be the United States District Court for the Western District of North Carolina or in another court of competent jurisdiction located within the County of Mecklenburg, State of North Carolina, USA. Each party submits to the exclusive venue and jurisdiction of such courts, agrees that it will not bring any suit or judicial proceeding in any forum other than such courts, and agrees not to assert any objection that it may have to the venue or jurisdiction of such courts.


11.4        Entire Agreement. This Agreement, including the Fee Proposal, if any, constitutes the entire agreement between the parties and supersedes any and all prior agreements, negotiations, proposals and representations, oral or written, relating to the subject matter herein. No provision of this Agreement may be changed, modified or amended except by an agreement in writing, signed by the parties hereto.  This Agreement shall be binding on the parties hereto and their respective heirs, successors and permitted assigns.


11.5        Waiver.  The waiver of a breach hereunder may be effected only by a writing signed by the waiving party and shall not constitute or be held to be a waiver of any other or subsequent breach, or to affect in any way the effectiveness of such provision or to affect the right of either party to terminate this Agreement. 


11.6        Captions.  The captions used in this Agreement have been inserted only for reference purposes.  The captions and order of such captions shall not be deemed to govern, limit, modify, or in any manner affect the scope, meaning, or intent of any of the provisions and/or terms of this Agreement, nor shall any captions be given any legal effect.


11.7        Relationship.  This Agreement does not create a partnership, joint venture or agency relationship between the parties.  Neither You nor CCS shall have any right, power, or authority to act as a legal representative of the other, and neither party shall have any power to obligate or bind the other, or to make any representations, express or implied, on behalf of or in the name of the other in any manner for any purpose whatsoever.


11.8        Equitable Relief.  Each party acknowledges and agrees that irreparable harm may result from its breach of this Agreement, that there may not be an adequate remedy at law for such breach, and that the non-breaching party, in addition to all other remedies, shall be entitled to seek equitable relief for such breach, including injunctions and specific performance, in any court of competent jurisdiction.


                11.9        Publicity.  CCS may issue a press release announcing that You have licensed the Software.   CCS may also list You as a CCS customer on the CCS website and in CCS presentations and marketing materials.     



End of Agreement