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1. Definitions. a. An “Affiliate” means any corporation, partnership, joint venture, or other entity (1) as to which you own or control, directly or indirectly, stock or other interest representing more than twenty-five percent (25%) of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (2) if a partnership, as to which you or another Affiliate is a general partner; (3) to which you provide substantial management services under contract; or (4) that you otherwise control or assist in matters of management and operations. b. “Commercial Use” means any use other than Evaluation Use. Commercial Use includes, but is not limited to use of the Programs in a production or manufacturing environment, in the provision of services, or for personal use. c. A “Derivative Work” means a work that is based on one or more preexisting works, such as a revision, enhancement, modification, translation, abridgement, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted, and that, if prepared without authorization of the owner of the copyright in such preexisting work, would constitute a copyright infringement. For purposes hereof, a Derivative Work shall also include any compilation that incorporates such a preexisting work. Unless otherwise provided in this Agreement, all references to the Program(s) include any Derivative Works provided by Licensor or authorized to be made by you hereunder. d. “End-User Materials” means documentation that describes the function and use of each Program in sufficient detail to permit use of the Program, including all documents related to the syntax and structure of the Hyperscript language. e. “Evaluation Use” means analysis, review and testing of the Programs for the sole purpose of determining whether You intend to license the Programs from Licensor for Commercial Use. f. The “Object Code” of the Program(s) means the Program(s) assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse assembly, reverse compiling, or reverse engineering. g. “Program(s)” means the Hyperscript Engine and any front-end applications provided by Licensor. h. The “Source Code” of the Program(s) means the Program(s) written in programming languages, such as C and Fortran, including all comments and procedural code, such as job control language statements, in a form intelligible to trained programmers and capable of being translated into Object Code for operation on computer equipment through assembly or compiling, and accompanied by documentation, including flow charts, schematics, statements of principles of operations, and architecture standards, describing the data flows, data structures, and control logic of the Program(s) in sufficient detail to enable a trained programmer through study of such documentation to maintain and/or modify the Program(s) without undue experimentation. i. “You” means the single end-user customer organization signing this Agreement. 2. Affiliates. Unless otherwise provided in the Commercial Use Exhibit, your rights and licenses hereunder may extend to the benefit of your Affiliates, provided that they assume and abide by the obligations and restrictions established hereunder. 3. Copying of Programs and End-User Materials. Licensor grants you a non-exclusive license to copy and distribute internally (including to Affiliates) the Program(s) and related End-User Materials in support of your use of the Program(s) as provided in Paragraphs 4 and 5 hereof. You agree to include all copyright, trademark, and other proprietary notices of Licensor in each copy of the Program(s) as they appear in the versions provided to you by Licensor. You agree to maintain records of the number of copies of the Program(s) that you make, use, or possess. a. Evaluation Use. Licensor grants you a nonexclusive license in and to the Program(s), in Source Code form and Object Code form for Evaluation Use. b. Commercial Use. Upon receipt by Licensor of: 1) a fully executed Commercial Use Exhibit; and, 2) the License Fee set forth therein, which incorporates the terms of this Agreement, Licensor grants you a nonexclusive license in and to the Program(s), in Source Code and Object Code form, to: i) Install the Program(s) on number of computers that you own or lease as set forth on the Commercial Use Exhibit; ii) Use and execute the Program(s) for purposes of serving your internal needs; iii)
In support of your authorized use of the Program(s), physically
transfer the Program(s) from one (1) computer to another; store the
Program(s)’ machine-readable instructions or data on a temporary basis in
main memory, extended memory, or expanded memory of such computer system as
necessary for such use; and transmit such instructions or data through
computers and associated devices. 6. Initial Modifications. If, as provided in the Implementation Plan, initial modifications are to be made by Licensor to a Program before or after installation and/or use of the Program, Licensor shall commence work on and diligently proceed with the development of such modifications in accordance with the Implementation Plan. Licensor shall commit and employ sufficient resources to meet the milestones and complete development of the modifications within the timetable provided in the Implementation Plan. Licensor agrees to notify you of any circumstances, when and as they arise, that may reasonably be anticipated to lead to a material deviation from such milestones or timetable. Licensor will test the modifications in accordance with the procedures provided in the Implementation Plan and will promptly correct any error or malfunction discovered as a result of such testing. 7. Back-up Copies. You may make up to two (2) copies of each Program in Object Code form for nonproductive backup purposes only. When use on more than one (1) computer is authorized by a Commercial Use Exhibit, you are authorized to make copies of the pertinent Program for up to the number of computers specified. 8. Term of License. The Term of your license for each Program is indicated in the applicable Commercial Use Exhibit. Upon expiration of the Term, each license is renewable for successive renewal terms of the same length, at your option and upon payment of Licensor’s then-current license fee. 9. Delivery and Installation. If applicable, Licensor will use its best efforts to install each Program in accordance with the Implementation Plan included in the applicable Commercial Use Exhibit. Licensor will not be responsible for delays caused by events or circumstances beyond its reasonable control. You are responsible for obtaining computers and operating systems compatible with the Program(s), as shown in the technical specifications for each Program. Installation shall be complete when a copy of the Program has been installed on your computer system at the initial installation site and the executability of the Program on such computer system has in Licensor’s judgment been sufficiently demonstrated. Completion of installation shall constitute your acceptance of the license for the Program, but shall not affect any warranties still in effect under Paragraph 19. 10. License Fees. You agree to pay fifty percent (50%) of the Initial License Fees for your license of a Program upon execution of the applicable Commercial Use Exhibit; twenty-five percent (25%) upon installation of the Program; and the balance within thirty (30) days after completion of installation and training. If additional License Fees are specified for a Program (e.g, annual license fees or incremental license fees for multi-copy or LAN licenses), they shall be paid as provided in the applicable Commercial Use Exhibit. 11. Other Charges. License fees do not include travel and living expenses for implementation meetings, installation and training, file conversion costs, optional products and services, consulting services, shipping charges, or the costs of any recommended hardware. You agree to pay such fees and costs, when and as the services are rendered and the expenses incurred, as invoiced by Licensor. Licensor reserves the right to require prepayment or advance deposit for services or expenses in some instances. You are also responsible for sales or use taxes and state or local property or excise taxes associated with your licensing, possession, or use of the Program(s). 12. Late Charges. If any fee or cost is not paid within thirty (30) days after it is due, Licensor may, at its option, charge interest at a rate of ten percent per annum or, if less, the highest rate allowed by applicable law) from the date such fee or charge first became due. 13. Maintenance and Consulting. Upon expiration of the warranty period indicated in Paragraph 19, Licensor’s responsibility to maintain the Program shall end unless you enter into a Software Maintenance Agreement offered by Licensor. In the event that you request consulting services that are beyond the scope of this Agreement and the Software Maintenance Agreement, Licensor may provide such services or recommend appropriate outside consultants. In all cases, fees for such services will be charged at Licensor’s standard rates and you will be responsible to pay such fees, plus any necessary travel and living expenses if services are provided more than thirty (30) miles from the nearest service location. 14. Customer Responsibilities. You are responsible for the following actions: a. Determining whether the Program(s) will achieve the results you desire; b. Procuring, installing, and operating computers and operating systems to run the Program(s); c. Providing a proper environment and proper utilities for the computers on which the Program(s) operate, including an uninterrupted power supply; d. Selecting and training your personnel so they can operate computers and so they are familiar with the accounts and records that serve as input and output for the Program(s); and e. Establishing adequate operational backup provisions in the event of a defect or malfunction that renders the Program(s) or the computer systems on which they run non-operational. Licensor reserves the right to charge additional service fees if an operator seeks assistance with respect to such basic information or any other matters not directly relating to the operation of the Program(s). Licensor does not hold itself out as a professional expert and adviser regarding your computer or information needs. Licensor is not responsible for obsolescence of the Program(s) that may result from changes in your requirements. 15. Proprietary Protection. Licensor shall have sole and exclusive ownership of all right, title, and interest in and to the Program(s), End-User Materials, all copies thereof, and all modifications enhancements and/or Derivative Works thereto (including ownership of all copyrights and other intellectual property rights pertaining thereto), subject only to the right and license expressly granted to you herein. You hereby assign to Licensor all ownership and control of any resulting modification, correction, or enhancement to the Programs or End-User Materials, including any patent rights available with respect thereto, any trade secrets pertaining thereto, and any copyrights subsisting therein as Derivative Works. This Agreement does not provide you with title or ownership of the Program(s), End-User Materials or Derivative Works thereto, but only a right of limited use. 16. Limitations on Use, Etc. You may not use, copy, modify, or distribute the Program(s) (electronically or otherwise) or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized in this Agreement, an applicable Commercial Use Exhibit, or a separate written agreement signed by Licensor. Except as provided for Affiliates in Paragraph 2, your license may not be transferred, leased, assigned, or sublicensed without Licensor’s prior written consent, except for a transfer of the Program(s) in their entirety to a successor in interest of your entire business who assumes the obligations of this Agreement. You authorize Licensor to enter your premises in order to inspect the Program(s) during regular business hours to verify compliance with the terms of this Agreement. 17. Data. You acknowledge that data conversion is subject to the likelihood of human and machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media, that may give rise to loss or damage. Licensor shall not be liable for any such errors, omissions, delays, or losses, unless caused by its gross negligence or willful misconduct. You are responsible for adopting reasonable measures to limit the impact of such problems, including backing up data, and adopting procedures to ensure the accuracy of input data; examining and confirming results prior to use; and adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data. You are also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any data. 18. Confidentiality of Source Code. You agree to maintain in confidence the Source Code version of the Program(s) by using at least the same physical and other security measures as you use for your own confidential technical information and documentation. You further agree not to disclose the Source Code version of the Program(s), or any aspect thereof, to anyone other than employees or contractors who have a need to know or obtain access to such information in order to support your authorized use of the Program(s) and are bound to protect such information against any other use or disclosure. These obligations shall not apply to any information: generally available to the public; ascertainable based on the operation of the Object Code version of the Program(s) or use of the End-User Materials; independently developed or obtained without reliance on Licensor’s information; or approved for release by Licensor without restriction. 20. Limitation of Liability; Exclusion of Consequential Damages. The cumulative liability of Licensor to you for all claims relating to the Program(s) and any services rendered hereunder, in contract, tort, or otherwise, shall not exceed the total amount of all license fees paid to Licensor for the relevant Program(s) or services within the prior year. In no event shall either party be liable to the other for any consequential, indirect, special, or incidental damages, even if such party has been advised of the possibility of such potential loss or damage. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies. 21. Default. Should you fail to pay any fees or charges due hereunder or fail to carry out any other obligation under this Agreement or any other agreement with Licensor, Licensor may, at its option, in addition to other available remedies, terminate this Agreement or disable the Program(s), provided that it first gives you fifteen (15) days’ prior notice in order to permit you to cure your default. 22. Termination. Upon termination of this Agreement as a result of your default, or upon expiration of the Term of your license unless renewed (but, in such case, only as to the Program(s) whose licenses have expired), your license will terminate, and you are required to return or destroy, as requested by Licensor, all copies of the Program(s) in your possession (whether modified or unmodified), and all other materials pertaining to the Program(s), including all copies thereof. You agree to certify your compliance with such requirement upon Licensor’s request. 23. Notices. All notices or other communications required to be given hereunder shall be in writing and delivered either personally or by U.S. mail, certified, return receipt requested, postage prepaid, and addressed as provided in this Agreement or as otherwise requested by the receiving party. Notices delivered personally shall be effective upon delivery and notices delivered by mail shall be effective upon their receipt by the party to whom they are addressed. 24. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California as it applies to a contract made and performed in such state. 25. Modifications and Waivers. This Agreement may not be modified except by a writing signed by authorized representatives of both parties. A waiver by either party of its rights hereunder shall not be binding unless contained in a writing signed by an authorized representative of the party waiving its rights. The nonenforcement or waiver of any provision on one (1) occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing. It is agreed that no use of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.
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