Direct Supply Manufacturing, Inc. Software Terms

“Software” includes independent software that we license from you and/or sublicense to our customers as well as software that is included in, with or used in any Products and/or Services.

Definitions. For purposes of this Agreement: “Code” means both human readable programming statements that are compilable or interpretable into a machine readable program (the “Source Code”) and the executable machine readable computer programs that are derived from Source Code and are capable of affecting or controlling the operation of the programmable device or system (the “Object Code”) related to the Software or any enhancements. “Documentation” means any user manuals, help documents, and other written documentation provided with the Software or made generally available to end users of the Software.

Grant of License/Restrictions on Use. You shall permit access to and/or deliver, as applicable per our request, to us and our customers the Software and accompanying Documentation as provided with each order. You grant to us and our customers a limited, restricted, non-exclusive, worldwide, fully-paid, non-transferable (except to our customers and their facilities) license to access through the Internet or install, as applicable, and the right to use the Software, in machine readable Object Code form and to use related Documentation provided by you in connection with the Software, Products and/or Services only for our and/or our customer’s lawful business purposes. Consistent with the nature of this Agreement, we may assign, sublicense, lease, or otherwise transfer the Software, Documentation and/or any portion thereof to our customers and/or their facilities, provided that such reproduction shall be solely for the use of us or our customers (or their facilities) and each of our and their respective employees (e.g. training purposes) and provided that any such reproductions shall be subject to any Software license materials you include with the Software, Product or Service, as applicable, or is subject to those terms you and we agree to incorporate into our contract or terms and conditions with such customer.

Restrictions on Use. Except with your prior consent or as otherwise expressly permitted in this Agreement, we shall not, and will not knowingly permit any customer, employee, authorized user, or other third party to (i) use or copy the Software or Code; (ii) modify, decompile, or otherwise reverse engineer any Source Code; (iii) translate, extract or “cut and paste” the Code into any other software code; (iv) commercially distribute the Software except to our customers and their facilities as provided in bona fide order from our customers or their facilities; or (v) remove, obscure, or modify any copyright or other notices included in the Software.

Ownership of Rights. In the event that only Supplier’s existing Software and/or Code is being licensed to our customers, and no changes have been made beyond adding a DSM brand/logo, You retain exclusive right, title and interest in and to the Software and Code and all copies or portions thereof all as delivered to us or our customer, as applicable, including all intellectual property rights, and all applicable rights to patents, copyrights, and trademarks in and to the same will be and remain your property. However, all other Works arising out of or relating to the Software and/or Code are DSM’s sole and exclusive property and DSM is deemed to be the inventor, owner, creator, and author of such Works. To the extent any Works are found not to be work for hire, Supplier will assign and transfer (and if applicable cause its Staff to assign and transfer) to DSM all rights, title, royalties, and interest in and to such Works and cooperate with DSM and execute, upon DSM’s request, a signed transfer of all such rights, consent and waiver to any moral rights, and other documentation reasonably required for DSM to secure its rights to such Works. Supplier and Supplier’s Staff will promptly disclose to DSM all Works made or conceived by them arising out of or related to the software and/or Code. Upon DSM’s request, Supplier will deliver to DSM, all such Works, records, and information, together with any written or electronic material related thereto. Neither Supplier nor any of its Staff shall apply or file any document for any patent, trademark or copyright for any Work. Supplier will be responsible for breaches by this section by its Staff.

Software Indemnification. Provided our customers (a) are using the Software in accordance with this Agreement, (b) not using the Software in violation of any law; and (c) not using the Software in combination with any hardware or other software that you have not permitted, consented to, or recommended, then you agree that you will, at your sole expense, indemnify, defend and hold harmless any legal action or claim brought against us and/or our customers (and their facilities) which alleges that the Software, Documentation or any portion of either of them infringes upon any patents, copyrights, licenses, trade secrets or other intellectual property of any third party, provided that must we promptly notify you of any such legal action or claim. Except with your prior written consent, we will not settle any such legal action or claim of you accept and undertake the defense. If, as a result of any such claim or legal action, you, we or our customers (or their facilities) are enjoined from using the Software of Documentation (or any portion of either of them), you will, at your sole option and expense (i) immediately procure for us and our customers the right to continue to use the Software or (ii) replace or modify the Software so that it does not so infringe. If you have promptly and diligently attempted options (i) and (ii) above but are unable to successfully accomplish either, we and our customers will have the right to terminate this Agreement and return the Software to you for a full refund.

Service Levels & Representations. You warrant that all Software will conform to and function as provided in its then most recent documentation, this Agreement, and any marketing materials. All Software will be available for use at least 99.7% of the time subject to: (a) power interruptions; (b) end user hardware You warrant and represent that no Software will contain and we and our customers will not receive from any of your data transmissions (e.g. Internet) or media (e.g. CD) any virus, malicious code, worm, trap door, back door, timer, clock, counter or other limiting routine that would erase data or programming or otherwise cause any software, system or equipment to become inoperable, interrupted or incapable of ordinary use (a “Disabling Code”) including, without limitation, any limitations that are triggered by any software: (a) being used or copied a certain number of times, or after the lapse of a certain period of time (or similar factors or events); or (b) any software being installed on or moved to a computer that has a serial number, model number or other identification different from the computer on which the Software originally was installed (or similar factors or events). In the event you introduce a Disabling Code into any of our or our customer’s equipment, at no additional cost to us or our customer, you shall: (a) furnish us and our customer with replacement Software, products or services without the presence of Disabling Codes; (b) install and implement such new Software; and (c) take all steps necessary to restore any and all data or programming lost by us or our customer as a result of such Disabling Code. The Software and the Documentation Services provided by you shall also comply with all federal, state, and municipal laws, regulations, permits, and standards.

Last Updated September 2021