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Deskbar Builder SOURCE CODE AND OBJECT CODE LICENSE AGREEMENT.
This Source Code And Object Code License Agreement ("Agreement") between SOFTOMATE LLC ("SOFTOMATE"), principal place of business at 104 6th street, Unit B, Lynden, Washington, USA and __________________________ corporation with offices at _______________________ ("Licensee") is effective as of _____________ ("Effective Date").
RECITALS:
SOFTOMATE has developed proprietary source code and object code. Licensee
wishes to license such proprietary source code and object code. The
parties desire to set forth the terms and conditions under which Licensee
shall license such proprietary source code and object code from SOFTOMATE.
For good and valuable consideration, including the payment made by Licensee
to SOFTOMATE on Effective Date for this license, the sole monetary compensation
due hereunder, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows.
AGREEMENT
1.0 DEFINITIONS
1.1 "Documentation" shall mean the documentation and supporting
materials relating to the Software Source Code.
1.2 "Object Code" shall mean the computer executable embodiment
of software computer code, which is derived from Source Code by a process
generally known as "compilation" or any other process that
translates Source Code or some intermediate code derived from Source
Code into a form that can be executed by a computer.
1.3 "Software" shall mean the software specified on Exhibit
A.
1.4 "Software Source Code" shall mean the Source Code of the
Software.
1.5 "Source Code" shall mean the human readable embodiment
of software computer code, which must be translated by a process generally
known as "compilation" into Object Code before such software
can be executed by a computer.
2.0 LICENSE GRANT
2.1 Source Code. SOFTOMATE hereby grants to Licensee a non-exclusive,
non-transferable (except as provided otherwise in Section 8.5), terminable
(in accordance with Section 7.1) right and license to reproduce, modify,
and otherwise use, and the right and license to create Object Code from
modified and/or unmodified Software Source Code for distribution in
connection with the products and services of the Licensee.
2.2 Object Code. SOFTOMATE hereby grants to Licensee a non-exclusive,
non-transferable (except as provided otherwise in Section 8.5), terminable
(in accordance with Section 7.1) license to reproduce and distribute
Object Code created from modified Software Source Code, and to authorize
third parties use such Object Code.
3.0 LICENSE RESTRICTIONS
3.1 Licensee may not use the Software in any manner not permitted by
Sections 2.1 and 2.2 except with SOFTOMATE's prior written consent.
Licensee may only use the Software Source Code at the location(s) designated
above.
3.2 Licensee shall ensure that anyone who uses the Software does so
only in compliance with the terms of this Agreement.
4.0 REPRESENTATIONS AND WARRANTIES
4.1 THE SOFTWARE IS PROVIDED "AS IS" WITH ALL FAULTS. SOFTOMATE
HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS
OR IMPLIED, WITH RESPECT TO THE SOFTWARE INCLUDING, WITHOUT LIMITATION,
ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT. SOFTOMATE DOES NOT WARRANT THAT THE USE
OR OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE
IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USING THE
SOFTWARE. LICENSEE ASSUMES ALL RISKS ASSOCIATED WITH USE OF THE SOFTWARE,
INCLUDING, BUT NOT LIMITED TO, THE RISKS OF PROGRAM ERRORS, DAMAGE TO
OR LOSS OF DATA, PROGRAMS OR EQUIPMENTAND UNAVAILABILITY OR INTERRUPTION
OF OPERATIONS.
5.0 LIMITATION OF LIABILITY AND INDEMNIFICATION
5.1 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT, CONSEQUENTIAL,
INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES UNDER THIS AGREEMENT
EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. SOFTOMATE
SHALL NOT BE LIABLE FOR THE LOSS OF, OR DAMAGE TO, LICENSEE'S RECORDS
OR DATA OR ANY DAMAGES CLAIMED BY LICENSEE BASED ON A THIRD PARTY CLAIM.
5.2 Licensee shall defend, indemnify and hold harmless SOFTOMATE from
and against any claims, liabilities, damages and expenses (including
attorneys' fees) arising out of or relating to the Software Source Code
or the Object Code derived from the Software Source Code, or arising
out of or relating to the breach of this Agreement.
6.0 FEES AND SUPPORT
6.1 SOFTOMATE and its affiliates agree to maintain and/or support the
Software at the request of Licensee at a rate of USD$20 per man hour
of work actually performed. At the request of Licensee, SOFTOMATE will
negotiate a separate services agreement for the provision of such maintenance
and support.
7.0 TERM AND TERMINATION
7.1 This Agreement and Licensee's license rights granted under it remain
in effect until it is terminated by either party as provided herein.
If this Agreement is terminated, then the Licensee's rights under the
license set forth in Section 2.1 shall immediately terminate. SOFTOMATE
may terminate this Agreement thirty days after notifying Licensee of
a material breach of this Agreement if such material breach remains
uncured after such period. Licensee may terminate this Agreement upon
providing written notice to SOFTOMATE. The provisions concerning indemnification
and those that by their nature should survive the termination of this
Agreement shall survive the termination of this Agreement.
8.0 GENERAL
8.1 Non-exclusivity. Each party may enter into similar agreements with
other parties.
8.2 No Additional IP Rights. Except as expressly stated herein, this
Agreement does not grant Licensee any rights in any SOFTOMATE patents,
copyrights, trademarks, trade names, or service marks.
8.3 Compliance with Laws. Licensee in its performance of all of its
obligations hereunder shall comply with all applicable laws and regulations,
including, without limitation, export and import control laws and regulations.
8.4 Independent Contractors. In performing this Agreement, the parties
act and shall act at all times as independent contractors, and nothing
contained in this Agreement shall be construed or implied to create
an agency, partnership or employer and employee relationship between
the parties. Except as expressly set forth in this Agreement, at no
time shall either party make commitments or incur any charges or expenses
for, or in the name of, the other party.
8.5 Assignment; Delegation. SOFTOMATE may not assign any of its rights
or delegate any of its duties hereunder without the prior written consent
of Licensee. Except as permitted by the foregoing, any attempted assignment
or delegation shall be null, void and of no effect. Licensee may not
assign its rights and delegate any of its duties under this Agreement
without the prior written consent of SOFTOMATE, which consent shall
not be unreasonably withheld or delayed; provided, that Licensee may
assign its rights and/or delegate any of its duties to any person or
entity that is a part of the Licensee Family of Companies, or as part
of a merger, acquisition or other change of control, in either case
without the prior written consent of SOFTOMATE.
8.6 Severability. If any provision of this Agreement is invalid or unenforceable
for any reason in any jurisdiction, such provision shall be construed
to have been adjusted to the minimum extent necessary to cure such invalidity
or unenforceability. The invalidity or unenforceability of one or more
of the provisions contained in this Agreement shall not have the effect
of rendering any such provision invalid or unenforceable in any other
case, circumstance or jurisdiction, or of rendering any other provisions
of this Agreement invalid or unenforceable whatsoever.
8.7 Waiver. No waiver under this Agreement shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of such waiver is sought. Any such waiver shall constitute
a waiver only with respect to the specific matter described therein
and shall in no way impair the rights of the party granting such waiver
in any other respect or at any other time. Any delay or forbearance
by either party in exercising any right hereunder shall not be deemed
a waiver of that right.
8.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE WASHINGTON STATE, WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION
ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT
UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF THE COURTS OF THE WASHINGTON STATE UNITED STATES.
8.9 Counterparts. This Agreement may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and
all of which when taken together shall constitute one Agreement.
8.10 Headings; Interpretation. The headings in this Agreement are inserted
merely for the purpose of convenience and shall not affect the meaning
or interpretation of this Agreement. This Agreement shall be construed
fairly according to its terms, without regard to the identity of the
drafter of any provision in this Agreement.
9.0 Entire Agreement and Construction.
(a) Entire Agreement. Except as specifically provided for in this Agreement, this Agreement constitutes the complete agreement between the parties and supersedes all prior agreements and representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement.
(b) Construction. This Agreement shall also supersede all terms of any unsigned or "shrink-wrap" license including in any package, media or electronic version of the Software and any such Software shall be licensed solely under the terms of this Agreement. When executed and dated by both parties, any order forms that reference this Agreement and its Effective Date shall be incorporated in this Agreement by reference.
IN WITNESS WHEREOF, each party has executed this Agreement and represents and warrants that its execution has been duly authorized.
______________________(Licensee)
Signature: _____________________
Name: ________________________
Title: _________________________
Softomate LLC
Signature: ____________________
Name: ________________________
Title: _________________________
EXHIBIT A
DESCRIPTION OF SOFTWARE
The Software is (i) Deskbar version 1.5 in both source code and object code forms including any derivative works thereof
Reports shall be sent by mail, electronic mail, or facsimile to:
SOFTOMATE
Licensing Department
104 6th Street, Unit B
Lynden, Washington 98264
USA
email: license@softomate.com
fax: +1-801-4578820
SOURCE CODE
[TO BE ATTACHED]