Software License Agreement
This Software License Agreement (“Agreement”) is made by and between Sentias Software Corp. (“Licensor”) and You (“Licensee”). In consideration of the mutual covenants contained herein, Licensor and Licensee hereby agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings set forth below:
1.1. “Licensed Software” shall mean the computer program in object code or machine-readable format, together with any and all modifications, enhancements, updates, and improvements provided by Licensor. The term “Licensed Software” shall not include the source code version of the Licensed Software.
1.2. “Documentation” shall mean all manuals and written or printed technical material (in any medium), provided by Licensor to Licensee to explain the operation of the Licensed Software or aid in its use.
1.3. “Use” shall mean: (a) copying or transmitting the Licensed Software into a data processing system for the processing by such data processing system of instructions or statements contained in the Licensed Software; and (b) the copying of the machine-readable form of the Licensed Software on a data processing system for backup purposes only.
2. LICENSE
2.1. Upon payment pursuant to the terms set forth therein, Licensee is hereby granted, in accordance with the terms and conditions of this Agreement, a non-exclusive, non-transferable right during the term of this Agreement to Use the Licensed Software and Documentation in connection with a specific domain name, Internet Protocol address (collectively, the “Web Site”) on a single server or computer at a single location (the “Server”). This license shall include the right to modify specific portions of the Licensed Software’s source code in order to customize the Licensed Software for Use on the Server in connection with the Web Site; provided that any such modifications shall be the property of Licensor, and not Licensee, pursuant to Article 8. Licensee, though, shall have a non-exclusive, non-transferable right to use such modifications in connection with the Licensed Software as permitted by this Section 2.1.
2.2. Licensee shall provide Licensor with the details of the Web Site and the Server referred to in Section
2.1 within thirty (30) days from the date of this Agreement. Thereafter, such Web Site and Server may not be changed without the prior consent of Licensor.
2.3. Licensee acknowledges that Licensor, in granting the license described herein, retains all property, right, title and interest in and to the Licensed Software, including any Modifications thereto, and Documentation, and specifically the right to license the Licensed Software, including any Modifications thereto, and Documentation to other persons.
2.4. The term of the license shall commence on the date of this Agreement, and shall continue until terminated in accordance with Article 10 or by the parties’ mutual agreement.
3. USE AND COPY RESTRICTIONS
3.1. Licensee shall only use the Licensed Software in accordance with the limited license granted by Section 2.1. Without limiting the generality of the foregoing, Licensee is strictly prohibited from: (a) Using, or allowing a third party to use, the Licensed Software in connection with any other Web Site or Server other than as specified pursuant to Section 2.2. (b) Distributing, selling, leasing, assigning, trading, or otherwise transferring the Licensed Software or Documentation (or any copies thereof) to any third party. (c) Distributing, selling, leasing, assigning, trading, or otherwise transferring any Modifications (as that term is defined in Section 8.1) of the Licensed Software or Documentation to any third party.
3.2. Except to the extent permitted by Section 2.1, Licensee may not modify, adapt, translate, reverse engineer, de-compile, disassemble or create derivative works based upon the Licensed Software or Documentation.
3.3. Licensee is permitted to make a reasonable numbers of backup copies of the Licensed Software and Documentation, provided that any such copies, together with the originals, are kept in Licensee’s sole possession or control at a secure location. Licensee shall reproduce and include the whole of any copyright notice of Licensor on any and all copies in any form, including partial copies or modifications, of the Licensed Software or Documentation.
4. LIMITED WARRANTY
4.1. Licensor represents and warrants to Licensee that the Licensed Software will perform substantially in accordance with the functions described in the Documentation when properly used in accordance with the Documentation on the hardware and operating system for which it was designed. Licensor does not warrant that the Licensed Software will meet Licensee’s requirements, or that Licensee’s operation of the Licensed Software will be uninterrupted or error-free. Licensee acknowledges that Licensor has advised it to conduct its own due diligence with respect to the reliability and suitability of the Licensed Software.
4.2. Licensor’s sole obligation in connection with a breach of the warranty described in Section 4.1 shall be to use commercially reasonable efforts to correct the material problem or defect. Provided, however, that Licensor shall not be liable for any problem with the Licensed Software caused by factors beyond its reasonable control, including any modifications to the Licensed Software made by Licensee or a third party, or the use of the Licensed Software in a manner other than in accordance with this Agreement and the Documentation. If Licensor cannot correct a problem or defect for which it is responsible within a reasonable time, Licensee shall be entitled to return all of its copies of the Licensed Software and Documentation and receive a refund of the license fees paid to Licensor for the Licensed Software. The foregoing shall be Licensee’s sole remedy in connection with a breach of the warranty described in Section 4.1. Licensor shall not be liable for any loss (whether direct, consequential, incidental, or special) which Licensee may suffer as a result of any defect, error, fault, or failure to perform with respect to the Licensed Software, even if Licensor has been advised of the possibility of such loss.
4.3. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND LICENSOR DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION
5.1. Licensor shall defend, indemnify, and hold Licensee harmless from and against any claims, losses, expenses, fees (including attorneys’ fees), costs or damages arising in connection with a claim that the Licensed Software or Documentation, when properly used, infringes upon any presently existing United States patent, trademark, or other intellectual property right, provided that: (a) such claim of infringement is not based on any action taken or suffered by Licensee other than the Use of the Licensed Software and Documentation in accordance with the terms and conditions of this Agreement; (b) Licensee promptly notifies Licensor of such claim in writing, and gives Licensor exclusive control over the defense and settlement of such claim; and (c) Licensee provides such cooperation and assistance, at Licensor’s expense, as Licensor may reasonably request to settle or oppose any such claim.
5.2. In the event of any infringement claim for which Licensor is liable pursuant to Section 5.1, Licensor may, at its sole option and expense: (a) procure for Licensee the right to continue Using the Licensed Software or Documentation; (b) modify or amend the Licensed Software or Documentation so that it becomes non-infringing; (c) replace the Licensed Software or Documentation with a non-infringing substitute; or (d) recover the infringing Licensed Software and Documentation from Licensee and repay to Licensee all license fees paid to Licensor in connection therewith, less a reasonable amount based on Licensee’s use prior to such recovery and refund.
5.3. This Article 5 sets forth Licensor’s sole obligations and liability for intellectual property infringement.
6. LIMITATION OF LIABILITY
6.1. Except with respect to its intellectual property indemnification obligations, which shall be as set forth in Article 5, in no event shall Licensor be liable for special, indirect or consequential damages (including, without limitation, lost profits, lost data, or lost savings), even if Licensor was advised of the possibility of such damages. Furthermore, Licensor’s liability (whether in contract, tort, or otherwise) arising out of, or connected with, this Agreement or the Licensed Software or Documentation shall in no case exceed the payments received by Licensor from Licensee for the Licensed Software and Documentation.
6.2. Except in connection with its obligations under Articles 7, 8 or 9: (a) in no event shall Licensee be liable for special, indirect or consequential damages (including, without limitation, lost profits, lost data, or lost savings), even if Licensee was advised of the possibility of such damages; and (b) Licensee’s liability (whether in contract, tort, or otherwise) arising out of, or connected with, this Agreement or the Licensed Software or Documentation shall in no case exceed the payments owed to Licensor for the Licensed Software and Documentation.
7. CONFIDENTIALITY AND PROTECTION OF LICENSED SOFTWARE
7.1. Licensee acknowledges that all information which Licensor may have imparted, or may from time to time impart, to Licensee relating to the Licensed Software and Documentation constitutes confidential and proprietary information of Licensor. Accordingly, while this Agreement is in effect and for a period of five (5) years following its termination, Licensee shall not: (a) disclose such information (including the Licensed Software and Documentation itself) to anyone without Licensor’s prior written consent, except for employees or agents of Licensee on a need to know basis who have entered into written agreements (in a form reasonably acceptable to Licensor) with Licensee to keep such information confidential; or (b) use such information except in connection with its permitted Use of the Licensed Software in accordance with this Agreement.
7.2. Upon request, Licensee shall provide Licensor with the names of all employees and agents who have access to the confidential information described in Section 7.1, as well as copies of the underlying confidentiality agreements between Licensee and such employees and agents.
7.3. Licensee shall maintain accurate and up-to-date records of the number and location of all copies of the Licensed Software and Documentation, and shall supervise and control the Use of the Licensed Software and Documentation in accordance with the terms of this Agreement.
7.4. Licensee shall not be permitted to have any access to any source code relating to, or in any way connected with, the Licensed Software (the “Source Code”). In the event that Licensee learns of or determines the Source Code it shall: (a) immediately notify Licensor of such fact and return to Licensor or destroy any indicia, record or documentation of the Source Code; (b) keep the Source Code confidential and not disclose it to any person; and (c) not sell, license, sublicense, transfer, use or otherwise exploit the Source Code.
8. INTELLECTUAL PROPERTY RIGHTS IN MODIFICATIONS
8.1. In consideration for the right to customize the Licensed Software granted by Section 2.1, Licensor shall have exclusive title to, and all intellectual property rights in, all modifications or improvements to the Licensed Software created by, conceived of, or reduced to practice by, Licensee (including, but not limited to, all derivative works, inventions, computer programs, software code, and documentation). (Such modifications or improvements are collectively referred to herein as “Modifications”). This grant of right, title, and interest shall include all moral and author’s rights, if applicable. It is intended that any Modifications will be original works made for hire, but to the extent that any Modification is not a work for hire, Licensee assigns to Licensor all right, title, and interest to such item. If any Modification contains or was developed from pre-existing materials owned by Licensee or a third party, Licensee shall disclose this fact to Licensor in writing, and grant Licensor a worldwide, irrevocable, royalty-free, perpetual, and fully transferable license to such pre-existing materials.
8.2. Modifications shall only be made by employees or agents of Licensee who have: (i) entered into written agreements ensuring that such employees or agents will not possess any proprietary rights in any Modification, and (ii) entered into confidentiality agreements as set forth in Article 7.
8.3. Licensee shall execute (or shall obtain from its employees and agents) such instruments of transfer and assignment as Licensor’s counsel may reasonably request to ensure that Licensor has the intellectual property rights granted to it by this Article 8. Licensee further agrees to deliver to Licensor as requested by Licensor’s counsel such duly executed instruments of assignment or applications necessary to vest in Licensor or its designee the sole and exclusive ownership of (and the right to apply for and prosecute patent, copyright and trademark applications covering) each such invention, improvement, discovery or trademark to which Licensor is granted ownership pursuant to this Article 8. Licensee further agrees that it will from time to time, at Licensor’s request and expense, aid Licensor in preparing or giving testimony in any and all patent, copyright, trademark application, or other judicial or quasi-judicial proceedings which may arise in connection with the intellectual property rights granted to Licensor pursuant to this Article 8.
8.4. Licensor shall have no liability to Licensee, any customer or user of Licensee’s web site or products, or any other third party in connection with the Modifications. Licensee shall be solely responsible for the performance or failure of the Modifications, or any damages or injuries which a customer, user, or any other party may suffer in connection with the Modifications.
8.5. Nothing in this Article 8 shall be construed to expand the right of Licensee to modify the Licensed Software beyond the limited right to customize the Licensed Software granted pursuant to Section 2.1.
9. INDEMNIFICATION OBLIGATIONS OF LICENSEE
9.1. Licensee shall defend, indemnify, and hold Licensor harmless from any claims, losses, expenses, fees (including attorneys’ fees), costs or damages arising in connection with a Modification or Licensee’s unauthorized use of the Licensed Software or Documentation.
10. TERMINATION
10.1. Either party may terminate this Agreement and the license granted hereunder upon the happening of any of the following events: (a) if the other party terminates or suspends its business; (b) if the other party becomes subject to any bankruptcy or insolvency proceeding, or makes an assignment for the benefit of its creditors; or (c) if the other party has materially breached this Agreement, and such breach is not cured within twenty (20) days after written notice of the breach is given by the party seeking termination.
10.2. Upon termination of this Agreement for any reason, Licensee shall return to Licensor (or destroy and certify such destruction to Licensor in writing) all copies of the Licensed Software and Documentation, and Licensee shall thereafter refrain from using the Licensed Software and Documentation.
10.3. Articles 5, 6, 7, 8 and 9 shall survive the termination of this Agreement.
11. ASSIGNMENT
11.1. Under no circumstances shall this Agreement or the license granted hereunder be assigned, sold, leased, or otherwise transferred by Licensee (directly, indirectly, or by operation of law through a merger, sale of controlling equity interest, or otherwise) without the prior consent of Licensor. Provided, however, that Licensee shall have the right to assign its rights and obligations under this Agreement to any purchaser of all or substantially all of its assets or other successor to its business so long as: (a) Licensee provides Licensor with prior written notice of such proposed assignment; (b) such assignee agrees in writing to be bound by the terms and conditions of this Agreement; and (c) such assignee is not a competitor of Licensor (as determined by Licensor in its discretion).
11.2. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
12. GENERAL
12.1. In the event of any unauthorized use of the Licensed Software or Documentation by Licensee, in addition to all other remedies available at law or in equity, Licensor shall be entitled to apply to a court of competent jurisdiction for equitable relief by way of a restraining order, injunction, or otherwise, without the necessity of having to post bond or other security.
12.2. This Agreement, including the attached schedules, contains the entire agreement between Licensor and Licensee, and supersedes all prior negotiations and agreements, with respect to the subject matter contained herein. This Agreement may only be modified by a written agreement signed by both parties subsequent to this Agreement.
12.3. This Agreement, and its application and interpretation, shall be governed by the internal laws of British Columbia without regard to that Province’s choice of law principles. Any action brought in connection with this Agreement shall be brought only in a federal or provinceal court sitting in Vancouver, British Columbia. The prevailing party in any action brought in connection with this Agreement shall be entitled to recover its costs and reasonable attorneys’ fees from the non-prevailing party.
12.4. The failure of either party to seek redress for the violation of, or to insist upon the strict performance of, any covenant or condition of this Agreement shall not prevent a subsequent act that would have originally constituted a violation from having the effect of an original violation.
12.5. In the event that any of the terms, conditions or provisions of this Agreement shall be determined to be invalid, unlawful, or unenforceable to any extent, such term, condition or provision shall be severed from the remaining terms, conditions and provisions, which shall continue to be valid to the fullest extent permitted by law.
12.6. Licensee shall be responsible for any taxes owed in connection with this Agreement.
12.7. This Agreement may be executed in several counterparts, all of which taken together shall be deemed one original agreement binding on all parties, notwithstanding that all the parties are not signatories to the same counterpart.
12.8. Use of the Licensed software constitutes your acceptance of this Agreement.
Last Updated September 1, 2005