Whereas Licensee desires to download source code files and additional content to prepare certain website development Source Code Filess and to provide related services to Licensee’s customers (“Source Code Files”); and
Whereas, Company desires to grant Licensee a license on the terms set forth herein to download, market, and distribute the downloaded Source Code Files.
Whereas, Company desires to grant Licensee a license on the terms set forth herein to download, market, and distribute the downloaded Source Code Files.
For purposes of this Agreement, the terms defined in this Section 1 and any other capitalized terms defined in other sections of this Agreement will have the meanings as either set forth below or in the applicable section.
1.1 “Licensee Proprietary Information” refers to the proprietary rights (including patent, copyright, trademark, trade secret and other rights) owned or licensed by Licensee in or relating to the Source Code Files.
1.2 “Distribute, Distributed or Distribution” means any offer of the Source Code Files to a customer of Licensee.
1.3 “Intellectual Property Rights” refers to the proprietary rights (including patent, copyright, trademark, trade secret and other rights) owned or licensed by the Company, concerning or relating to the Site or the Source Code Files or content developed or otherwise owned by the Company.
1.4 “Royalty or Royalties” refers to the amounts payable by Licensee to Company in accordance with this Agreement.
1.5 “System Updates” mean upgrades,bug fixes, or additional features that modify the operating system of the Site or which are designed to optimize or enhance the operation, performance, or security of the Site.
2.1 Grant of License. Subject to the terms and conditions of the Agreement, Company grants to Licensee, during the Term, a nonexclusive, nontransferable, worldwide to download the Source Code Files and the Intellectual Property Rights therein to develop and market website applications and related content for distribution solely to the customers of Licensee who have executed license agreements containing terms that are substantially similar to those set forth in Sections 2,3,7 and 9 of this Agreement (the “Purpose”). Licensee is not permitted to use the Source Code Files or any of the Intellectual Property Rights for any purpose other than the Purpose without the Company’s prior written approval.
2.2 General Restrictions. Except as expressly provided herein, Licensee shall not (and shall not allow or enable any third party, including end users of its Source Code Files(s) to):
3.1 Development. Licensee is solely responsible for development, testing, quality, content, operation and support of all Source Code Filess that it downloads and uses or integrates for the Purpose and must comply with any guidelines made available to Licensee by Company in connection therewith.
3.2 Company Requirements. Licensee shall review all content, websites or applications that it distributes to its customers and into which it integrates or uses any downloaded Source Code Files (“Content”) prior to such distribution and shall ensure that all such Content adheres to the following content standards and guidelines (“Company Requirements”). Specifically, the Licensee agrees that such Content:
3.3 Cure Period. If at any time the Company determines in its sole discretion that Licensee has violated any of the Guidelines or Company Requirements, the Company may reject, temporarily suspend or otherwise restrict the use of or access to the Source Code Files in the Marketplace or over other channels owned by the Company. In such cases, the Company will notify Licensee of the violation via e-mail within two business days and Licensee shall have five business days to cure the violation (the “Cure Period”) by altering or removing all or, if practicable, a portion of the Content that violates the Company Requirements. If Licensee reasonably disputes the Company’s determination of violation, the parties will confer in good faith and attempt to resolve the dispute during the Cure Period, but the Company will make the final determination. If Licensee fails to cure the violation within the Cure Period, the Company may, without further notice, permanently suspend Licensee’s access to the Site and to the Source Code Files
3.4 Security Technology, System Updates and Notifications. In its sole discretion, and without Notice to Licensee, Company may add security technology, system updates, and trademark, copyright or customer notifications (“Updates”) to the Source Code Files provided, however, any such addition by Company will not serve to release Licensee from any obligation under the Agreement or under applicable laws, rules or regulations. Company may in addition require Licensee at Licensee’s sole expense to update its Content from time to time to (i) comply with any new Updates or (ii) fix bugs or other operational defects or errors in the Content in accordance with Company’s then-current Guidelines.
3.5 Hosting of Content. All Content will be hosted by the Licensee at the Licensee’s sole cost and expense.
3.6 Notice & Review. Licensee will promptly notify the Company if it: (a) receives a complaint from a customer that involves any of the prohibitions of the Company Requirements; or (b) otherwise becomes aware of an alleged violation under Section 3.2. The Company reserves the right to review the Content to determine if it violates the Company Requirements. If, during this review, the Company determines in its sole discretion that the Content violates any of the Company Requirements, the mechanisms under Section 3.3 shall apply.
4.1 No Liability for Development of Content. Licensee acknowledges that its development of proposed Content is at its sole risk. Company is under no obligation to advertise, market distribute, or support Content nor will Company have any liability whatsoever with respect the performance of the Content
4.2 Marketing by Licensee. Licensee may in its sole discretion and at its expense advertise and market the Content through its own advertising channels. Subject to the Company’s approval, Licensee may include the Company’s name ,description, logos or a description of the Company’s Source Code Files in certain marketing materials. Licensee shall submit to the Company samples of proposed marketing Source Code Files for Company’s review and approval.
4.3 Customer & Technical Support. Company shall have no obligation pursuant to this Agreement to provide Licensee with any support regarding the Content. Notwithstanding any other provisions of this Agreement, Company shall have no obligation to provide Licensee with any updates to the Source Code Files. Company shall have no obligation to provide any maintenance or support for the Source Code Files under this Agreement. Licensee shall be solely responsible for providing support to end users of its Source Code Files.
5.1 License Fee. Licensee shall remit, prior to downloading an Source Code Files, a non-refundable license fee in the amount that Company shall determine based on the specific Source Code Files as Licensee elects to download. (“Fee”)
6.1 Term and Termination. The Term of this Agreement shall commence upon the Effective Date and shall continue in perpetuity until terminated: (a) by either party upon written notice to the other party; (b) automatically, if Licensee fails to comply with any term of the Agreement; or (c) in whole or in part by Company, if any third party providing Source Code Files (such as APIs) contained in the Company Source Code Files, has terminated its relationship with Company or ceased to offer such Source Code Files through Company.
6.2 Survival. Sections 1,6,7,9,10,11,14 and 17 shall survive any termination or expiration of this Agreement for any reason.
6.3 Effect of Termination. Upon any expiration or termination of this Agreement, Licensee
7.1 Definition. Each party agrees to hold the Confidential Information of the other party in confidence, and not to use or disclose such Confidential Information, except as permitted hereunder. For purposes herein, “Confidential Information” means any and all technical and non-technical information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”) under this Agreement and related to the past, present or future business or technology of the Disclosing Party, including without limitation information constituting or concerning processes and methodologies; product architecture, designs and specifications; software, whether human-readable or machine-readable; product, marketing, sales and business development plans and strategies; competitive analyses; financial analyses and forecasts; customers and prospects; licensing and distribution arrangements; the identity, skills and compensation of employees, contractors and consultants; and third party information that the Disclosing Party is obligated to maintain in confidence. The Disclosing Party will mark all Confidential Information in tangible form “confidential” or “proprietary” or with words of similar import, and will identify as confidential at the time of disclosure any Confidential Information disclosed orally or in another intangible form. Regardless of whether so marked or identified, any information that the Receiving Party knew or should have known was considered confidential or proprietary by the Disclosing Party, including without limitation information learned by the Receiving Party upon visual inspection of the Disclosing Party’s premises, will be considered Confidential Information of the Disclosing Party under this Agreement.
7.2 Exclusions. Notwithstanding the foregoing, neither party shall have any obligation under Section 7.1 with respect to any information that it can prove is: (a) now or hereafter, through no unauthorized act or failure to act on the Receiving Party’s part, in the public domain; (b) known to the Receiving Party without an obligation of confidentiality effective at the time the Receiving Party received the same from the Disclosing Party, as evidenced by written records; (c) hereafter furnished to the Receiving Party by a third party as a matter of right and without restriction on disclosure; or (d) independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall: (i) assert the confidential nature of the information to the agency; (ii) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (iii) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
8.1 Ownership of Source Code Files . This Agreement only grants a license and is not a sale of the Source Code Files or any portion or copy thereof. As between the parties, Company owns all right, title and interest in and to the Source Code Files and any updates thereof and all Intellectual Property Rights therein. Company reserves all right, title and interest in and to the Source Code Files not expressly granted to Licensee under this Agreement, and except for the licenses granted by Company to Licensee under this Agreement, no right, title, ownership, interest or license in or to the Source Code Files, whether by implication, estoppel or otherwise, is granted, assigned or transferred to Licensee under or in connection with this Agreement.
8.2 Ownership of Content. Subject to Company's underlying rights in the Source Code Files, Licensee shall retain all rights, title and interest in and to the Content and any derivative works thereof; provided, however, Licensee hereby covenants and agrees that it will not, at any time during the term of this Agreement or thereafter, assert any claim of any kind against Company, any Company customer, or any Company licensee (who has agreed to substantially similar terms as this Agreement), alleging infringement of Licensee's Intellectual Property Rights or other rights in such Content.
8.3 Company Trademarks. Licensee acknowledges that Company or its affiliates are the sole owners of all trademark rights in the marks used by Company to designate the Company itself and/or services. Licensee agrees to do nothing inconsistent with such ownership. Licensee acknowledges that this Agreement does not grant any rights to use any of the foregoing trademarks or any other trademark of Company or any of its affiliates, even if such marks are included in any aspect of the Source Code Files.
9.1 General Warranties. Each party represents and warrants that: it has all right, power and authority to enter into this Agreement and to grant the licenses hereunder. Licensee further represents and warrants that, in its performance hereunder, both Licensee and the Source Code Filess developed hereunder shall comply with all applicable laws, regulations and rules of any government body or agency or other competent authority, including all applicable privacy, privacy-related, data security and data security-related laws and regulations (including, in each case, any applicable foreign laws and regulations).
9.2 Company Source Code Files. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT:
10. Indemnification. Licensee shall, at its expense: (a) indemnify and defend or settle any claim, suit or proceeding that is instituted by a third party against Company and its officers, directors, employees, agents, suppliers or customers (the “Company Indemnified Parties”) to the extent such claim, suit or proceeding arises out of or is in relation to (i) any breach or claim of breach of any of Licensee’s covenants under this Agreement or (ii) by reason of any claims in respect of the distribution or sale of the Conte, including, but not limited to, products liability and intellectual property infringement claims, which are not due to any violation or breach by Company of its covenants under this Agreement; and (b) pay all damages finally awarded therein against the Company Indemnified Parties or agreed upon in settlement by Licensee (including other reasonable costs incurred by Company, including reasonable attorney’s fees, in connection with enforcing this Section). Company agrees to notify Licensee of, render reasonable assistance (at Licensee’s sole expense), and permit Licensee to direct the defense or settlement of, such action or claim, except that Licensee may not enter into a settlement arrangement which would result in any liability to Company without Company’s prior written consent.
11. Limitation of Liability; Damages. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL COMPANY OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, OR INTERRUPTION OF BUSINESS IN ANY WAY ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE COMPANY SOURCE CODE FILES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF COMPANY OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, UNDER NO CIRCUMSTANCES SHALL COMPANY OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY LICENSEE AS A RESULT OF (I) ANY RELIANCE PLACED BY LICENSEE ON THE COMPLETENESS, ACCURACY OF THE SOURCE CODE FILES OR CONTENT, (II) ANY CHANGES WHICH COMPANY OR ITS SUPPLIERS MAY MAKE TO THE COMPANY SOURCE CODE FILES OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES PROVIDED THROUGH THE COMPANY SOURCE CODE FILES (OR ANY FEATURES WITHIN THE SOURCE CODE FILES), (III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH LICENSEE’S USE OF THE COMPANY SOURCE CODE FILES; IN THE CONTENT (IV) LICENSEE’S FAILURE TO PROVIDE COMPANY WITH ACCURATE ACCOUNT INFORMATION; OR (V) LICENSEE’S FAILURE TO KEEP LICENSEE’S PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY’S OR ITS SUPPLIERS’ TOTAL AGGREGATE LIABILITY EXCEED THE AMOUNT OF TWO-HUNDRED DOLLARS (US$200).
13. No Assignment. Licensee may not assign or otherwise transfer this Agreement or the rights or obligations hereunder, either in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Company, which consent may be withheld in Company’s sole discretion; and any attempted transfer or assignment is null and void and shall be deemed a material breach of this Agreement.
14. Injunctive Relief. Licensee acknowledges and agrees that the copying, disclosure or use of the Company Source Code Files or Confidential Information in a manner inconsistent with any provision of this Agreement may cause irreparable injury to Company for which Company will not have an adequate remedy at law. Accordingly, Company shall be entitled to seek equitable relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions.
15. Relationship of the Parties. Each of the parties shall at all times during the term of this Agreement act as, and shall represent itself to be, an independent contractor, and not an agent or employee of the other. Nothing stated in this Agreement will be construed as creating the relationships of joint venturers, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent. Licensee will be solely responsible for all costs, expenses and losses associated with its use of the Company Source Code Files.
16. Notices. All notices so given shall be deemed received upon the earlier of receipt or one (1) day after dispatch or in the case of certified mail or overnight courier, the earlier of receipt or five (5) days after deposit in the mail. Notices sent to Company shall be sent to its then-current corporate headquarters address to the attention of Company’s General Counsel. Notices sent to Licensee shall be sent to the address provided by Licensee in this Agreement.
17. Miscellaneous Legal Provisions. This Agreement contains the entire agreement of the parties, and supersedes any and all previous agreements with respect to the subject matter hereof, whether oral or written. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless agreed to by both parties to this Agreement. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in this Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement. In the event, any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired.
This Agreement shall be governed by and construed under the laws of the State of _ Delaware and the United States without regard to conflicts of laws provisions thereof. The sole and exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in Wilmington, Delaware. Both parties consent to the exclusive jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by Delaware or federal law.
Neither party shall export, directly or indirectly, any information acquired under this Agreement or any products utilizing any such information to any country or to any individual or entity for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval. With respect to any export transactions under this Agreement, both parties will cooperate in any reasonable manner to effect compliance with all applicable export regulations.