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
(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
(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
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)
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
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.
6.1. 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
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.
7.1. 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
(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
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;
(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.
12.1. 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
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
"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
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.