THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is made and entered into this ___ day of________ , 20__ (the "Effective Date") by and between Cyboriginal/DragonScripts ("Company") and ___________________________________ ("Licensee").
RECITALS
A. Company is the owner of, or has acquired rights to, the Software and Documentation (as defined below).
B. Company desires to grant to Licensee and Licensee desires to obtain from Company a non-exclusive license to use the Software and Documentation solely in accordance with the terms and on the conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS.
1.1 "Designated Equipment" shall mean the hardware products identified on Exhibit "A" with which the Software is licensed for use.
1.2 "Documentation" shall mean all manuals, user documentation, and other related materials pertaining to the Software which are furnished to Licensee by Company in connection with the Software.
1.3 "License Fee" shall mean the
amount, in US currency, paid for each copy of the license, as set forth on
Exhibit "A"
1.4 "Software" shall mean the computer programs listed in Exhibit "A" attached hereto and any subsequent error corrections or updates supplied to Licensee by Company pursuant to this Agreement. Exhibit "A" may be amended from time to time by the parties in writing.
2. GRANT OF RIGHTS.
The License granted for Software under this Agreement authorizes Licensee on a nonexclusive basis to use the Software on the number of primary systems of Designated Equipment identified on Exhibit "A" hereto for the license term set forth on Exhibit "A". The Software shall be used only on such primary systems if they are operating properly. If any primary system is down, the Software may be used on a backup system for that primary system.
3. DELIVERY.
3.1 Software. Company shall deliver to Licensee a master copy of the Software and Documentation licensed hereunder in object code form, suitable for reproduction, in electronic files only.
4. MODIFICATIONS.
4.1 Error Corrections and Updates. Company will provide Licensee with access to error corrections, bug fixes, patches or other updates to the Software licensed hereunder as they become available. It is the sole responsibility of Licensee to obtain and apply such updates.
4.2 Other Modifications. Licensee may, from time to time, request that Company incorporate certain features, enhancements or modifications into the Software. Company may, in its sole discretion, undertake to incorporate such changes and distribute the Software so modified to all or any of Company's licensees.
4.3 Title to Modifications. All such error corrections, bug fixes, patches, updates or other modifications shall be the sole property of Company.
5. COPIES.
5.1 Printed Matter. Except as specifically set forth herein, no Software or Documentation which is provided by Company pursuant to this Agreement in human readable form, such as written or printed documents, shall be copied in whole or in part by Licensee without Company's prior written agreement. Additional copies of printed materials may be obtained from Company at the charges then in effect.
5.2 Machine Readable Matter. Except as specifically set forth herein, any Software provided in machine readable form may not be copied by Licensee in whole or in part, except for Licensee's backup or archive purposes. Licensee further agrees to reproduce all copyright and other proprietary notices on all copies of the Software in the same form and manner that such copyright and other proprietary notices are originally included on the Software.
6. LICENSE FEES AND PAYMENT.
6.1 License Fee. In consideration of the
license rights granted in Article 2 above, Licensee shall pay the License Fees
or other consideration for the Software and Documentation as set forth on
Exhibit "A" attached hereto. All amounts payable hereunder by
Licensee shall be payable in United States funds without deductions for taxes,
assessments, fees, or charges of any kind. Payment may be rendered by methods
available at Company website (see Exhibit “A”) or as otherwise agreed upon
between Licensee and Company.
6.2 Taxes and Other Charges. Licensee shall be responsible for paying all (i) sales, use, excise, value-added, or other tax or governmental charges imposed on the licensing or use of the Software or Documentation hereunder, (ii) freight, insurance and installation charges, and (iii) import or export duties or like charges.
7. PROTECTION OF SOFTWARE.
7.1 Proprietary Notices. Licensee agrees to respect and not to remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on any of the Software or output generated by the Software, and to reproduce and include same on each copy of the Software.
7.2 No Reverse Engineering. Licensee agrees not to modify, reverse engineer, disassemble, or decompile the Software, or any portion thereof, without prior consent of Company.
7.3 Ownership. Licensee further acknowledges that all copies of the Software in any form provided by Company or made by Licensee are the sole property of Company and/or its suppliers. Licensee shall not have any right, title, or interest to any such Software or copies thereof except as provided in this Agreement, and further shall secure and protect all Software and Documentation consistent with maintenance of Company's proprietary rights therein.
8. CONFIDENTIALITY.
8.1 Acknowledgement. Licensee hereby acknowledges and agrees that the Software and Documentation constitute and contain valuable proprietary products and trade secrets of Company and/or its suppliers, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, Licensee agrees to treat (and take precautions to ensure that its employees treat) the Software and Documentation as confidential in accordance with the confidentiality requirements and conditions set forth below.
8.2 Maintenance of Confidential Information. Each party agrees to keep confidential all confidential information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that neither party shall have any such obligation with respect to use of disclosure to others not parties to this Agreement of such confidential information as can be established to: (a) have been known publicly; (b) have been known generally in the industry before communication by the disclosing party to the recipient; (c) have become known publicly, without fault on the part of the recipient, subsequent to disclosure by the disclosing party; (d) have been known otherwise by the recipient before communication by the disclosing party; or (e) have been received by the recipient without any obligation of confidentiality from a source (other than the disclosing party) lawfully having possession of such information.
8.3 Injunctive Relief. Licensee acknowledges that the unauthorized use, transfer or disclosure of the Software and Documentation or copies thereof will (i) substantially diminish the value to Company of the trade secrets and other proprietary interests that are the subject of this Agreement; (ii) render Company's remedy at law for such unauthorized use, disclosure or transfer inadequate; and (iii) cause irreparable injury in a short period of time. If Licensee breaches any of its obligations with respect to the use or confidentiality of the Software or Documentation, Company shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
8.4 Survival. Licensee's obligations under this Article 8 will survive the termination of this Agreement or of any license granted under this Agreement for whatever reason.
9. WARRANTIES; SUPERIOR RIGHTS.
9.1 Ownership. Company represents its belief that it is the owner of the entire right, title, and interest in and to Software, and that it has the sole right to grant licenses thereunder, and that it has not knowingly granted licenses thereunder to any other entity that would restrict rights granted hereunder except as stated herein.
9.2 Limited Warranty. Company represents and warrants to Licensee that the Software, when properly installed by Licensee and used with the Designated Equipment, will perform substantially as described in Company's then current Documentation for such Software.
9.3 Limitations. Notwithstanding the warranty provisions set forth in Section 9.2 above, all of Company's obligations with respect to such warranties shall be contingent on Licensee's use of the Software in accordance with this Agreement and in accordance with Company's instructions as provided by Company in the Documentation, as such instructions may be amended, supplemented, or modified by Company from time to time. Company shall have no warranty obligations with respect to any failures of the Software which are the result of accident, abuse, misapplication, or equipment failure.
9.4 Licensee's Sole Remedy. Company's entire liability and Licensee's exclusive remedy shall be, at Company's option, either (a) return of the price paid or (b) repair or replacement of the Software; provided Company receives written notice from Licensee during the warranty period of a breach of warranty. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
9.5 Disclaimer of Warranties. COMPANY DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 9.2 ABOVE ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED BY COMPANY. THERE ARE NO OTHER WARRANTIES RESPECTING THE SOFTWARE AND DOCUMENTATION OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF COMPANY HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF COMPANY IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF COMPANY AS SET FORTH HEREIN.
9.6 Limitation of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH COMPANY IS CHARGING HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY COMPANY OF THE RISK OF LICENSEE'S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH LICENSEE'S USE OF THE SOFTWARE AND DOCUMENTATION. ACCORDINGLY, LICENSEE AGREES THAT COMPANY SHALL NOT BE RESPONSIBLE TO LICENSEE FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE LICENSING OR USE OF THE SOFTWARE OR DOCUMENTATION. Any provision herein to the contrary notwithstanding, the maximum liability of Company to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of any Software delivered to Licensee hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual price paid to Company by Licensee for the Software whose license, use, or other employment gives rise to the liability. The essential purpose of this provision is to limit the potential liability of Company arising out of this Agreement. The parties acknowledge that the limitations set forth in this Article 9 are integral to the amount of consideration levied in connection with the license of the Software and Documentation and any services rendered hereunder and that, were Company to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.
10. INDEMNIFICATION
10.1 Company shall indemnify, hold harmless and defend Licensee against any action brought against Licensee to the extent that such action is based on a claim that the unmodified Software, when used in accordance with this Agreement, infringes a United States copyright and Company shall pay all costs, settlements and damages finally awarded; provided, that Licensee promptly notifies Company in writing of any claim, gives Company sole control of the defense and settlement thereof and provides all reasonable assistance in connection therewith. If any Software is finally adjudged to so infringe, or in Company's opinion is likely to become the subject of such a claim, Company shall, at its option, either: (i) procure for Licensee the right to continue using the Software (ii) modify or replace the Software to make it noninfringing, or (iii) refund the fee paid, less reasonable depreciation, upon return of the Software. Company shall have no liability regarding any claim arising out of: (i) use of other than a current, unaltered release of the Software unless the infringing portion is also in the then current, unaltered release, (ii) use of the Software in combination with non-Company software, data or equipment if the infringement was caused by such use or combination, (iii) any modification or derivation of the Software not specifically authorized in writing by Company or (iv) use of third party software. THE FOREGOING STATES THE ENTIRE LIABILITY OF COMPANY AND THE EXCLUSIVE REMEDY FOR LICENSEE RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY COPYRIGHT OR OTHER PROPRIETARY RIGHT BY THE SOFTWARE.
10.2 Except for the foregoing infringement claims, Licensee shall indemnify and hold harmless Company, its officers, agents and employees from and against any claims, demands, or causes of action whatsoever, including without limitation those arising on account of Licensee's modification or enhancement of the Software or otherwise caused by, or arising out of, or resulting from, the exercise or practice of the license granted hereunder by Licensee, its sublicensees, if any, its subsidiaries or their officers, employees, agents or representatives.
11. DEFAULT AND TERMINATION.
11.1 Events of Default. This Agreement may be terminated by the nondefaulting party if any of the following events of default occur: (1) if a party materially fails to perform or comply with this Agreement or any provision hereof; (2) if either party fails to strictly comply with the provisions of Section 9 (Confidentiality) or makes an assignment in violation of Section 13 (Nonassignability); (3) if a party becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (4) if a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by a party; or (5) if such a petition is filed by any third party, or an application for a receiver is made by anyone and such petition or application is not resolved favorably within ninety (90) days.
11.2 Effective Date of Termination. Termination due to a material breach of Articles 2 (Grant of Rights), 5 (Copies), 7 (Protection of Software), or 8 (Confidentiality) shall be effective on notice. In all other cases, termination shall be effective thirty (30) days after notice of termination to the defaulting party if the defaults have not been cured within such thirty (30) day period.
11.3 Obligations on Termination. Within ten (10) days after termination of this Agreement, Licensee shall cease and desist all use of the Software and Documentation and shall return to Company all full or partial copies of the Software and Documentation in Licensee's possession or under its control.
12. NOTICES. All notices, authorizations, and requests in connection with this Agreement shall be deemed given (i) five days after being deposited in the U.S. mail, postage prepaid, certified or registered, return receipt requested; or (ii) one day after being sent by overnight courier, charges prepaid, with a confirming email; and addressed as set forth on Exhibit "A" or to such other address as the party to receive the notice or request so designates by written notice to the other.
13. NONASSIGNABILITY. Licensee shall not assign this Agreement or its rights hereunder without the prior written consent of Company.
14. GOVERNING LAW; JURISDICTION AND VENUE. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Oklahoma. The Oklahomaa state courts of Tulsa County, Oklahoma (or, if there is exclusive federal jurisdiction, the United States District Court for the District of Oklahoma) shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement, and Licensee hereby consents to the jurisdiction of such courts.
15. SEVERABILITY. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
16. MISCELLANEOUS. This Agreement and its exhibits contain the entire understanding and agreement between the parties respecting the subject matter hereof. This Agreement may not be supplemented, modified, amended, released or discharged except by an instrument in writing signed by each party's duly authorized representative. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind.
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Agreement as of the date first set forth above.
Cyboriginal
By ________________________ (name)
Title _______________________
Licensee
By ________________________ (name)
Title _______________________
Description of Software:
DragonList, a links management program;
specifically, all files included in the dl_installv.x.x.zip file (where x.x is
the current stable version).
Designated Equipment:
Any *NIX-based machine running the Apache
web server software. The software has not been tested on any other
configuration as of this document, and may not function as desired on any other
configuration.
Each license is limited to a single web
domain or subdomain.
License Fees:
As of this document, the first domain
license is $325 dollars (US).
Additional domain licenses are $75 (US) per each.
Company Address:
Written communications should be addressed
to:
Michelle D. Spencer or James D. Gillispie
Cyboriginal
#673 4306 S Peoria
Tulsa, OK 74105-3922 USA
Electronic communications should be
addressed to:
Current pricing, payment methods,
documentation, upgrades, bug fixes, patches, etc. can be found at http://www.dragonscripts.com.
Licensee Address:
Written communications should be addressed
to:
Name:
Company:
Address:
Electronic communications should be
addressed to:
Email:
Licensed Domain(s):
List domain(s) for which license has been
purchased: