Source Code License Agreement
THE FOLLOWING IS A SOFTWARE LICENSE AGREEMENT (AGREEMENT) BETWEEN ENTERPRISEWIZARD INC (LICENSOR), A CALIFORNIA CORPORATION, AND _____________________ (LICENSEE), WITH AN EFFECTIVE DATE (EFFECTIVE DATE) OF DATE OF PRODUCT INSTALLATION.
Principles of this Agreement
A. Licensor will provide Licensee with object code and at least 90% of the source code of the software, excluding only the license manager and related components.
B. Licensee may modify the source code. However, LIcensee may not, directly or indirectly, circumvent the license manager.
C. Licensee has no obligation to provide Licensor with any modifications or enhancements to the source code.
D. Licensee may integrate the source code in other products.
E. Licensee may distribute the source code or object code of the software as long as it complies with the sublicensing requirements and pays all applicable fees.
Each of these rights is subject to the terms and conditions below.
License Agreement
1. Software. Upon request, Licensor will provide Licensee with the software and documentation accompanying this Agreement (the Software) in both object code and source code forms, except that any license manager component of the Software (the License Manager) will be provided in object code form only. The License Manager is a form of disabling code designed to prevent unauthorized use of the Software.
2. License Grants.
(a) Internal Use. Subject to the terms and conditions of this Agreement, Licensor grants Licensee, under Licensor's intellectual property rights in and to the Software, a limited, non-exclusive, non-transferable license to internally: (i) use the Software and derivative works thereof, in both object code and source code forms; and (ii) modify the Software and derivative works thereof (excluding the License Manager), in both object code and source code forms. Such rights are limited to the number and types of users and/or computer hardware for which the corresponding license fees have been paid.
(b) Distribution. Subject to the terms and conditions of this Agreement, Licensor grants Licensee, under Licensor's intellectual property rights in and to the Software, a limited, non-exclusive, non-transferable license to distribute the Software and derivative works thereof, in both object code and source code forms, and sublicense any Licensee rights set forth in this Section 2 (including this right to sublicense), to any third party.
3. Modifications. Licensee will have no obligation to provide corrections, bug fixes, enhancements, improvements, modifications or derivative works of the Software (collectively, Modifications) made by Licensee to Licensor.
Licensor Provisions
4. Ownership. Licensor or its suppliers own and shall retain all right, title and interest (including without limitation all intellectual property rights) in and to the Software and any Modifications thereto by Licensor. Licensee shall own the Modifications by Licensee, subject to Licensor's and its suppliers rights in the Software, its Modifications and derivative works thereof. Licensee shall have no right to receive any Modifications by Licensor unless Licensee has paid all corresponding license fees. Licensee acknowledges that the licenses granted under this Agreement do not provide Licensee with title to or ownership of the Software, but only a right of limited use under the terms and conditions of this Agreement. Licensee shall keep the Software free and clear of all claims, liens and encumbrances. Licensee acknowledges and agrees that Licensor owns the EnterpriseWizard trademarks and related trademarks, service marks, logos and other brand designations (Licensor Marks). Licensee may only use Licensor Marks after Licensee has certified Licensee's products in accordance with http://www.enterprisewizard.com/trademark_standards.htm and Licensee agrees to comply with Licensor's trademark guidelines currently located at http://www.enterprisewizard.com/trademark_guidelines.htm. Any use of Licensor Marks insures to the sole benefit of Licensor. Except as expressly set forth in Section 2, Licensor reserves all rights and grants Licensee no licenses of any kind hereunder, whether by implication, estoppel, or otherwise.
5. Sublicense Agreements. Licensee will ensure that prior to distributing or providing the Software or any derivative work thereof, whether in object code and/or source code form and whether in whole or in part, to any third party, such third party is bound by an enforceable sublicense agreement that at a minimum contains provisions at least as protective of Licensor as those in this Agreement, including without limitation: Sections 4, 5, 6, 7, 8, 10, 12, 15 and 16 and a requirement that all further sublicensees (through multiple tiers of licensing and sublicensing) be bound by such a sublicense agreement.
6. Restrictions. Licensee agrees that the licenses set forth in Section 2 do not include rights to and Licensee will not: (i) reverse engineer, reverse assemble or otherwise attempt to gain access to the source code of all or any portion of the License Manager; (ii) unbundle any component of the Software or any derivative work thereof from the License Manager or use any component of the Software or any derivative work thereof separate from the License Manager; (iii) use or modify any Software or any derivative work thereof in any manner in an attempt to circumvent the License Manager; (iv) use or access any Modifications from Licensor for which Licensee has not paid all corresponding license fees; (v) use the Software to develop any software or product unless such software or product incorporates the License Manager and Licensee has paid all applicable fees; (vi) use the Software for third-party training, commercial time-sharing or service bureau use; (vii) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed or embedded on or in the Software; or (vii) cause or permit any third party to do any of the foregoing.
7. Modifications.
a) To preserve Licensor's ability to continue to update, enhance, develop and commercialize the Software, Licensee hereby perpetually and irrevocably (both during and after the term of this Agreement) agrees that Licensee and its affiliates will not enforce or assert Licensee's patent rights in any Modifications against, in connection with, or in a manner which in any way limits, hampers or prevents the use, design, development, modification, enhancement, reproduction, and licensing or other distribution by Licensor or its distributors, resellers, OEMs, agents, customers, licensees (through multiple tiers of licensing and sublicensing) or end users in any country, of the Software or any derivative work thereof or any product incorporating or using the Software or any derivative work thereof. Licensee and Licensor acknowledge and agree that the foregoing covenant will not apply to other licensees of the Software if such licensees have not signed a covenant that extends to Licensee and that is substantially similar to Licensor's then-current standard covenant for the Software when licensed by such licensees.
b) Licensee will have no obligation to provide its Modifications to Licensor; however, to the extent that Licensee provides Licensor with any Modifications or any feedback or suggestions regarding the Software (together, Suggestions), Licensee hereby grants Licensor a worldwide, perpetual, irrevocable license, with the right to sublicense, under all Licensee's intellectual property rights related to such Modifications and Suggestions, to use such Modifications and Suggestions to improve Licensor's products and services, including the Software, and to make, offer for sale, sell, import, use, reproduce, modify and distribute products and services.
8. Confidentiality. During the period this Agreement is in effect and at all times after its termination, Licensee and its employees and agents shall maintain the confidentiality of the Software and derivative works thereof and shall not sell, license, sublicense, publish, display, distribute, disclose or otherwise make available the Software and derivative works thereof to any third party nor use the Software and derivative works thereof except as authorized by this Agreement. Licensee agrees to immediately notify Licensor of the unauthorized disclosure or use of the Software or derivative works thereof and to assist Licensor in remedying such unauthorized use or disclosure.
9. Fees and Payments. Licensee's license is subject to paying Licensor all applicable license fees for its own and its distributors, resellers', OEMs', agents', customers', licensees' (through multiple tiers of licensing and sublicensing) and end users' use, deployment, distribution and exploitation of the Software as specified on Licensor's web page at http://www.enterprisewizard.com/distribution.htm. Licensor will provide Licensee with a license key for the License Manager following receipt of payment of the corresponding license fees. Licensor shall have the right to inspect and audit Licensee's use, deployment, distribution and exploitation of the Software for compliance with the terms and conditions of this Agreement. Such an audit may require access to the Modifications made by Licensee, but will not result in the granting of rights to the Licensor described in section 7 (b).
10. Disclaimer. LICENSOR AND ITS SUPPLIERS PROVIDE THE SOFTWARE AS IS AND MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF AVAILABILITY, RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. LICENSOR MAKES NO DIRECT WARRANTY OF ANY KIND TO YOUR DISTRIBUTORS, RESELLERS, OEMS, AGENTS, CUSTOMERS, LICENSEES (THROUGH MULTIPLE TIERS OF LICENSING AND SUBLICENSING) OR END USERS UNDER THIS AGREEMENT. NEITHER LICENSOR NOR ANY OF ITS SUPPLIERS WARRANT THAT THE SOFTWARE OR ANY PART THEREOF WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, AVAILABLE, SECURE OR ERROR-FREE, OR THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
11. Infringement. The following provision only applies if Licensee has paid Licensor license fees for the Software: If Licensee has paid Licensor any license fees for the Software, Licensor shall defend or settle, at its own expense, any action against Licensee to the extent based upon a claim that the Software infringes any patent or copyright or misappropriates any trade secret of an unaffiliated third party and will pay such damages or costs as are finally awarded against Licensee attributable to such action, provided that Licensee (a) notifies Licensor promptly in writing of any such action, (b) gives Licensor sole control of the defense and/or settlement of such action, and (c) gives Licensor all reasonable information and assistance. Should the Software become, or in the opinion of Licensor be likely to become, the subject of such an infringement claim, Licensor may, at its option and sole compensation for infringement or misappropriation, (a) procure for Licensee the right to use the Software free of any liability; (b) replace or modify, in whole or in part, the Software to make it non-infringing; or (c) remove the Software, or part thereof, and refund the aggregate license payments paid therefore by Licensee to Licensor for the Software as depreciated over a three-year straight line basis. Licensor assumes no liability hereunder for (a) any method or process in which the Software may be used, (b) any compliance with Licensee's specifications, (c) use of other than a current unaltered release of the Software, or (d) the combination, operation or use of the Software with non-Licensor programs or data if such infringement would have been avoided by the combination, operation or use of the Software with other programs or data. THIS SECTION SETS FORTH LICENSOR'S ENTIRE LIABILITY AND OBLIGATION AND YOUR SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE OR ITS USE, REPRODUCTION OR DISTRIBUTION.
12. Limitation of Liability. IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, LOSS OF PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. LICENSOR'S TOTAL LIABILITY ARISING OUT OF OR UNDER THIS AGREEMENT OR FOR BREACH OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE TOTAL AMOUNTS PAID TO LICENSOR HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF LICENSOR AND/OR ITS SUPPLIERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. Distribution Indemnity. Licensee will indemnify, defend and hold Licensor harmless from any and all claims, actions, liabilities, losses, costs and expenses (including attorneys fees and court costs) resulting from or arising in connection with any actual or alleged act or omission by Licensee (other than any claim covered by Section 11).
14. Termination. This Agreement is effective until terminated. Licensee may terminate this Agreement at any time by destroying all copies of the Software. This Agreement and all licenses granted hereunder will terminate immediately without notice from Licensor if Licensee fails to comply with any provision of this Agreement. Upon any termination, Licensee must destroy all copies of the Software. The following sections shall survive any termination of this Agreement: Sections 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16 and 17 as well as any accrued unpaid payment obligations.
15. Export Restrictions. Licensee agrees to strictly comply with all export, re-export and import restrictions and regulations of the Department of Commerce or other agency or authority of the United States or other applicable countries, and not to transfer, or authorize the transfer, of the Software to a prohibited country or otherwise in violation of any such restrictions or regulations.
16. U.S. Government Restricted Rights. The Software is a commercial product, developed at private expense, and provided with restricted rights. Use, reproduction, release, modification or disclosure of the Software, or any part thereof, including technical data, by the United States Government is restricted in accordance with Federal Acquisition Regulation (FAR) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (DFARS) 227.7202 for military agencies.
17. General. The parties are independent contractors, and nothing in this Agreement is intended to create any agency, partnership or joint venture relationship between them. This Agreement is governed and interpreted in accordance with the laws of California, without reference to conflicts of laws principles. The parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts within United States of America. and agree that process may be served in the manner provided herein for giving notices or otherwise as allowed by California or federal law. The United Nations Convention on Contracts for the Sale of Goods shall not apply to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and reasonable attorneys fees. Licensee shall not transfer, assign or delegate this Agreement or any rights or obligations hereunder, in whole or in part, whether voluntarily, by operation of law or otherwise, without the prior written consent of Licensor. Any such purported transfer, assignment or delegation without such prior written consent shall be null and void. Licensor may transfer, assign or delegate this Agreement in whole or in part. Subject to the foregoing, the terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties to it and their respective heirs, successors, assigns and legal representatives. This Agreement constitutes the entire agreement between Licensee and Licensor with respect to the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard thereto, and supersedes any and all other written or oral agreements existing between the parties hereto regarding the subject matter of this Agreement. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the party to be charged. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable under any applicable statute or rule of law, such provision shall, to that extent, be deemed omitted, and the remaining portions of this Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.
EnterpriseWizard LICENSEE
By: ______________________________ ________________________________
Name: ______________________________ ________________________________
Title: ______________________________ ________________________________
Date: ______________________________ ________________________________