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QEWS License

Please read the following license agreement carefully. It describes your rights and obligations with respect to the QEWS software which you are purchasing or evaluating. When you have agreed to the terms and conditions of the license agrement, please signify your agreement by typing in your name, title, company name, and date at the bottom, and click "I accept." Doing so will have the same legal force as signing a written license agreement.

LICENSE TERMS AND CONDITIONS

This Agreement shall be subject to, and governed by, the following terms and conditions (the "License Terms and Conditions"). By requesting access to the Software from the Quiotix web server or file server, you agree to be bound to these license terms and conditions.

1. Definitions. Capitalized terms used herein are defined within this Agreement.

(a) "Licensee" shall mean your employer if your use of the software is related to your employment. References to "You" or "Your" within this Agreement refer to Licensee.

2. License Grant. Subject to the terms of this Agreement, and upon payment of any applicable license fees, Licensor grants Licensee a non-exclusive, non-transferable license according to the following terms and conditions:

(a) Evaluation of Software. Licensee may use the Software and Documentation free of charge, solely for the internal purposes of evaluating the Software for fitness for Licensee's purposes, for a period of up to fifteen (15) days. If Licensee does not purchase an SDK license for the Software within fifteen(15) days of this Agreement, this Agreement shall automatically terminate.

(b) SDK License. Upon purchase of one or more Software Development Kit ("SDK") licenses, Quiotix grants Licensee the right to use and modify the Software for internal research purposes and for the purpose of producing executable versions of the Software or derivatives thereof (the "Executable Code") for use only in conjunction with Licensee's end-user products. Such use shall be limited to a single person for each SDK license purchased. Purchase of an SDK license does not entitle Licensee to any rights in any future updated version of the Software.

(c) SDK License Subscription. Upon purchase of one or more SDK license subscriptions, Quiotix grants Licensee the right to use and modify the Software for internal research purposes and for the purpose of producing executable versions of the Software or derivatives thereof (the "Executable Code") for use only in conjunction with Licensee's end-user products. Such use shall be limited to a single person for each SDK license purchased. In addition, Licensee shall be entitled to receive, at no additional license fee, these license rights to future released updates to the Software during the Subscription Period.

(d) Runtime License. Upon purchase of one or more Runtime Licenses, Quiotix grants Licensee the right to produce, use, and distribute one copy of the Executable Code for each Runtime license purchased, provided that the Executable Code is distributed solely, and for use only in conjunction with the Licensee's end-user products, in accordance with Licensee's normal software licensing terms and conditions. Such licensing terms and conditions must include substantially the same protections of the intellectual property rights in the Software that Licensee provides for its own similar software products, but in no event less than reasonable protections.

3. License Restrictions.

(a) Licensee's rights in the Software will be limited to those expressly granted in Section 2 (License Grant).

(b) Licensee may not sublicense, distribute or disclose the software provided in source code form (the "Source Code") or related documentation to any third party.

(c) Licensee may not distribute the Executable Code without purchasing a Runtime License for each copy of the Executable Code distributed. Licensee will ensure that each copy of the Executable Code thereof distributed by Licensee is distributed subject to an appropriate software license agreement.

(d) Licensee will assume any and all obligations toward end users that may be incurred by Licensee, and to the extent not expressly warranted or indemnified by Licensor under this Agreement, will hold Licensor and its suppliers harmless and will indemnify Licensor and its suppliers against all claims of such end users related to the Software distributed by Licensee.

4. Proprietary Rights.

4.1. Software and Documentation. The Software and Documentation, in whole and in part and all copies thereof, are and will remain the sole and exclusive property of Licensor and its licensors. Licensee acknowledges and agrees that it has no rights or claims of any type to the Software except such rights as are created by this Agreement, and Licensee irrevocably waives and releases any claim to title and ownership rights (including without limitation trade secret and copyright ownership) in the Software licensed hereunder.

4.2. Modifications; Derivative Works. Licensee will own any modifications of or derivative works made from the Software prepared by or for Licensee (other than by Licensor), subject to full ownership rights retained by Licensor of any matter contained in the Software and incorporated in such modifications or derivative works. Licensee agrees to promptly notify Licensor in writing of any modifications of or derivative works made from the Software by or for Licensee.

4.3. Enhancements; Updates. Licensee understands and agrees that Licensor may develop and market new, enhanced, updated or different computer programs which use part or all of the Software and which perform all or part of the functions performed by the Software. Nothing contained in this Agreement gives Licensee any rights with respect to such new, enhanced, updated or different computer programs. Any such new, enhanced, updated or different computer programs will be provided by Licensor only under the terms of a separate agreement, if any, between the parties.

4.4. Notices. Licensee will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices of Licensor and its licensors, if any, appearing on the Software and any documentation used in connection with the Software. Licensee will reproduce a copyright notice, of the form below: (i) within the product documentation; (ii) in electronic form within the Products themselves so that the notice is displayed by the Products upon startup; and (iii) wherever Licensee normally places its own similar notices. The copyright notices for the Licensor shall read as follows, or as may reasonably be requested by Licensor:

"HTTP server software Copyright © 1996-1997 Quiotix Corporation (Menlo Park, CA). All rights reserved."

5. Payment; Reporting; Taxes.

5.1. Payment. Licensee will pay Licensor the License Fee in the amounts specified in License Agreement. Late payments will be subject to an additional fee of 1 1/2% per month or the maximum rate permitted by applicable law, whichever is less.

5.2. Quarterly Reports. Within thirty (30) days after the end of each calendar quarter during which copies of the Executable Code are distributed by Licensee, Licensee will furnish Licensor with an itemized report, signed on behalf of Licensee by an authorized representative of Licensee, that sets forth in detail the number of copies of the Executable Code distributed during each of the months in the preceding quarter, stated separately by Licensee's (or Licensee's sublicensee's) Product model.

5.3. Annual Reports. Within ninety (90) days after the end of each calendar year, Licensee will furnish Licensor with a consolidated report, signed on behalf of Licensee by an officer of Licensee, that sets forth in detail the year-to-date information as of the year end in all categories specified for quarterly reports under section 5.3 (Quarterly Reports) above. The year-end report may be combined with the final quarterly report for the year in question if (1) the final quarterly report results are separately stated, and (2) the year-end report is delivered on or before the time at which the final quarterly report is due.

5.4. Audit Rights. Licensor shall have the right to audit Licensee's distribution reports, with such audit rights being governed by the following terms and conditions.

(a) Licensor must provide five (5) business days notice of an audit to Licensee.

(b) Licensor may conduct audits no more frequently than once per year, provided that no discrepancies have been discovered by prior audits.

(c) Licensee shall maintain business records, books, account information, and related materials sufficient to permit Licensor to conduct such audits.

(d) Any audit may, at Licensor's discretion, include some or all of: (i) discussing Licensee's affairs, finances, and accounts with Licensee's officers and/or directors (who shall cooperate fully in such audit); (ii) discussing Licensee's sales and shipment volumes with Licensee's sublicensees, distributors and customers; and (ii) inspecting and copying such portions of Licensee's (as well as Licensee's sublicenees', distributors' and customers') books and records relating to the audit as Licensor deems appropriate.

(e) The cost of an audit shall normally be at Licensor's expense. However, Licensee will bear the cost of the audit if the audit reveals any underpayment which in the aggregate is greater than five percent (5%) of the amount actually due for the period being audited or if the audit reveals that the Executable Code has been distributed other than as permitted by this Agreement.

(f) Audits may encompass Licensee's books and records for any payment period if the audit is commenced within three (3) years of the date of Licensee's statement of payments due for that period.

(g) Licensee shall pay any shortfalls, plus interest as set forth in Section 5.1 (Payment) above dating from the due dates in question, within ten (10) business days after notice from the Licensee of the shortfall.

5.5. Taxes. Prices stated are exclusive of all taxes of whatever nature (including but not limited to sales and use taxes) associated with this Agreement or Licensee's receipt or use of the Software, except taxes based on Licensor's net income. Licensee will be responsible for, and will promptly pay (and, if necessary, reimburse Licensor for) all such taxes.

6. Warranty.

6.1. Warranty. Licensor delivers, and Licensee accepts, the Software "as is." Licensor warrants that during the thirty (30) days following delivery to the Licensee, the storage media containing the Software will be free from defects in materials and workmanship.

6.2. Licensee's Sole Remedy. In the event the storage media fails to conform to such warranty, as Licensee's sole and exclusive remedy for such failure Licensor will, at its option and without charge to Licensee, repair or replace the storage media.

6.3. Disclaimer. THE WARRANTIES IN THIS SECTION 6 (WARRANTY) ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

7. Indemnity.

7.1. Licensor's Duty to Indemnify and Defend.

(a) Licensor will indemnify Licensee against, and will defend or settle at Licensor's own expense, any action or other proceeding brought against Licensee to the extent that it is based on a claim that the use of the Software as licensed in this Agreement infringes any U.S. copyright or that the Software incorporates any misappropriated trade secrets.

(b) Licensor will pay any and all costs, damages, and expenses (including but not limited to reasonable attorneys' fees) awarded against Licensee in any such action or proceeding attributable to any such claim.

(c) Licensor will have no obligation under this Section 7.1 (Licensor's Duty to Indemnify and Defend) as to any action, proceeding, or claim unless: (1) Licensor is notified of it promptly; (2) Licensor has sole control of its defense and settlement; and (3) Licensee provides Licensor with reasonable assistance in its defense and settlement.

7.2. Injunctions. If Licensee's use of any Software under the terms of this Agreement is, or in Licensor's opinion is likely to be, enjoined due to the type of infringement or misappropriation specified in Section 7.1 (Licensor's Duty to Indemnify and Defend), then Licensor will, at its sole option and expense, either:

(a) procure for Licensee the right to continue using such Software under the terms of this Agreement; or

(b) replace or modify such Software so that it is noninfringing and substantially equivalent in function to the enjoined Software; or

(c) if options (a) and (b) above cannot be accomplished despite the reasonable efforts of Licensor, then Licensor may both: (1) terminate Licensee's rights and Licensor's obligations under this Agreement with respect to such Software, and (2) refund to Licensee the unamortized portion of the License Fee paid based upon a 5-year straight-line depreciation, such depreciation to be deemed to have commenced on the effective date of this Agreement.

7.3. Limitation. THE FOREGOING ARE LICENSOR'S SOLE AND EXCLUSIVE OBLIGATIONS, AND LICENSEE'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS. Licensor will have no obligations under this Section 7 (Indemnity) with respect to infringement or misappropriation arising from (a) modifications to or derivative works made from the Software by or for Licensee, (b) Software specifications requested by Licensee, or (c) the use of Software with products not provided by Licensor.

7.4. Indemnification By Licensee. Except with respect to claims as provided in Section 7.1 (Licensor's Duty to Indemnify and Defend) above, Licensee will indemnify Licensor and its suppliers against, and will defend or settle at Licensee's own expense, any action or other proceeding brought against Licensor and/or its suppliers to the extent that it is based on claims related to the executable versions of the Software and derivative works distributed by Licensee. Licensee will pay any and all costs, damages, and expenses (including but not limited to reasonable attorneys' fees) incurred by Licensor or its suppliers to investigate, defend and/or settle any such action or proceeding attributable to any such claim.

8. Confidential Information.

8.1. Obligations. Licensee agrees:

(a) that it will not disclose or, except as expressly permitted in this Agreement, use any Software, Documentation, or other technical information disclosed to it by Licensor ("Confidential Information"); and

(b) that it will take all reasonable measures to maintain the confidentiality of all of Licensor's Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of equal importance.

8.2. Exceptions. Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement; (b) Licensee receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (c) Licensee develops independently, which it can prove with written evidence.

8.3. Injunctive Relief. Licensee acknowledges that the Software is a trade secret of Licensor, the disclosure of which would cause substantial harm to Licensor that could not be remedied by the payment of damages alone. Accordingly, Licensor will be entitled to preliminary and permanent injunctive relief and other equitable relief for any breach of this Section 8 (Confidential Information).

9. Maintenance and Support. Any maintenance, support, training, or consulting services will be provided by Licensor only under the terms of a separate agreement, if any, between the parties.

10. Limitations of Liability.

10.1. No Special, Incidental or Consequential Damages. IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO LICENSEE UNDER THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT LICENSOR HAS OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

10.2. Maximum Liability. LICENSOR'S TOTAL LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO AMOUNTS RECEIVED BY LICENSOR FROM LICENSEE UNDER THIS AGREEMENT.

10.3. Patent Infringement. Licensor makes no representations or warranties as to whether the Software (in whole or in part, alone or as part of the Products, whether or not modified by Licensee) infringes any patents anywhere in the world, and Licensor will not be liable to Licensee in any way for any such infringement. Licensee is solely responsible for obtaining any licenses of rights under any patents anywhere in the world necessary for Licensee to make, use or sell the Software (in whole or in part, alone or as part of the Products, whether or not modified by Licensee.)

10.4. Time Limit. No action arising out of the rights granted under this Agreement, regardless of form, may be brought by Licensee more than one (1) year after the cause of action has accrued.

10.5. Survival of Limitations. The parties have agreed that the limitations specified in this Section 10 (Limitations of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

11. Term and Termination. This Agreement will continue in full force and effect perpetually, except as follows:

11.1. Events of Termination. Licensor will have the right to terminate this Agreement and all rights granted to Licensee hereunder if:

(a) Licensee breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days of written notice from Licensor (including, without limitation, failure to make a payment within 30 days of written notice from Licensor that such payment is overdue); or

(b) Licensee becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or

(c) Licensee becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.

11.2. Effect of Termination. If Licensee's rights under this Agreement are terminated, either by termination or assignment: (a) Licensee will immediately cease all use of the Confidential Information (including but not limited to the Software and Documentation); (b) Licensee will immediately return to Licensor or (at Licensor's request) destroy all materials in its possession or control which contain Confidential Information except, in the case of assignment, materials which Licensee transfers to the assignee; and (c) an officer of Licensee will certify to Licensor in writing that it has done so.

11.3. Survival of Obligations. Any amounts due to Licensor as of the termination date, and the provisions of Sections 4 (Proprietary Rights), 7 (Indemnity), 8 (Confidential Information) and 10 (Limitations of Liability) will survive termination of this Agreement for any reason.

11.4. Nonexclusive Remedy. The exercise by Licensor of any remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

12. Miscellaneous.

12.1. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the state of California applicable to agreements entered into, and to be performed entirely, within California between California residents, without regard to conflicts of law principles. Any controversy or claim arising out of or relating to this Agreement, or any breach thereof, shall be settled by binding arbitration. Arbitration shall be conducted within 50 miles of Licensor's address shown below, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and the judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

12.2. Assignment. This Agreement will bind and inure to the benefit of each party's successors and assigns, provided that Licensee may not assign this Agreement, in whole or in part, without Licensor's prior written consent. Any attempted assignment or delegation without such consent will be void.

12.3. Notices. All notices under this Agreement will be deemed given when delivered personally in writing or sent by registered or certified mail, return receipt requested, to the address shown below or as may otherwise be specified by either party to the other in accordance with this Section 12.3 (Notices).

12.4. Legal and Professional Fees. If Licensor employs attorneys and/or other professionals to enforce any rights arising out of or relating to this agreement, and if Licensor prevails, Licensor shall be entitled to recover reasonable attorneys' and/or other professionals' fees from Licensee.

12.5. Severability. If any provision of this Agreement is for any reason found to be unenforceable, the remainder of this Agreement will continue in full force and effect.

12.6. Failure to Enforce. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights.

12.7. Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter.

12.8. Waiver; Modification; Amendment. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto.

12.9. Purchase Orders. Purchase orders or similar documents relating to the Software issued by Licensee will have no effect on the terms of this Agreement.

12.10. Independent Contractors. Licensor and Licensee agree that each party is an independent contractor. Neither party hereto has any right whatsoever to represent, obligate or bind the other party.

12.11. Export Restriction. Licensee agrees not to export the Software without first obtaining an appropriate export license as required under the then current regulations of the U.S. Department of Commerce or any other law.

12.12. Restricted Rights. Licensee agrees to include the following paragraph in all contracts and purchase orders for the Software supplied to the U. S. Government under a prime contract or to a contractor operating under a U. S. Government contract:

"Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(l)(ii) of the Rights in Technical Data and Computer Software clause at 252.227-7013."

12.13. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and together shall constitute one document.