This
Source Code License Agreement is between Vermont Database Corporation, 400
Upper Hollow Hill Road, Stowe, VT 05672
USA and ___________________________________________________ (“LICENSEE”).
WHEREAS,
Vermont Database Corporation and LICENSEE, desire to enter into a Source Code
License Agreement whereby Vermont Database Corporation will license to
LICENSEE, certain computer software programs.
NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth
below, the parties agree as follows:
1. DEFINITIONS
1.1 SOURCE CODE - means a computer program that is
represented in a programming language form used by human beings to write and
read computer programs.
1.2 OBJECT CODE - means a computer program that is
represented in a binary digit form that is directly readable by a
computer. It is the “machine language”
form of SOURCE CODE.
1.3 LICENSED SOFTWARE - means the particular SOURCE
CODE licensed to LICENSEE by Vermont Database Corporation under this Agreement,
as further defined in Appendix “A” to this Agreement.
1.4 APPLICATION SOFTWARE - computer program(s)
designed to perform specified tasks, such as word processing or aging of
accounts receivable, executable by a designated computer operating system.
2. LICENSE GRANT
2.1 Vermont Database Corporation grants to
LICENSEE, for the term of this Agreement, a nonexclusive, nontransferable,
world-wide right to:
2.1.1 Use the LICENSED SOFTWARE, internally only,
for the purpose of fixing defects and developing enhancements to Vermont
Database Corporation’s software products;
2.1.2 Use the LICENSED SOFTWARE, internally only,
for the purpose of modifying APPLICATION
SOFTWARE you have developed using Vermont Database Corporation software
products or merging such APPLICATION SOFTWARE with another program or programs.
2.1.3 Distribute, in OBJECT CODE form, only those
files named in the file REDISTRB.TXT on the diskette packaged with the
C-odeScript Developer’s Kit, and any modifications you make to such files using
the LICENSED SOFTWARE, provided such distribution is by inclusion of such file
in an APPLICATION SOFTWARE that you have developed. No other use of the
LICENSED SOFTWARE is permitted.
2.2 With respect to the uses allowed under
paragraphs 2.1.1 and 2.1.2 above, the LICENSED SOFTWARE may only be used by the
Authorized Users listed in Appendix “A”, and only such Authorized Users shall
be entitled to access to Vermont Database Corporation OBJECT CODE created from
the LICENSED SOFTWARE. The Authorized
Users listed in Appendix “A” may be amended from time to time upon request by
LICENSEE and payment by LICENSEE of any additional license fees required by
Vermont Database Corporation.
3. PROPRIETARY PROTECTION
3.1 LICENSEE shall be entitled to make one copy of
the LICENSED SOFTWARE for archival backup purposes only, or copy the LICENSED
SOFTWARE onto the hard disk of a single computer, and retain the original
solely for archival backup purposes.
LICENSEE shall reproduce all copyright notices, as depicted on the
master copies of the LICENSED SOFTWARE, on any media that it uses for the
storage of the LICENSED SOFTWARE or OBJECT CODE compiled from the LICENSED
SOFTWARE. LICENSEE agrees to indemnify
and hold Vermont Database Corporation harmless against any loss to WHEREAS,
Vermont Database Corporation arising from any use, disclosure or copying of the
LICENSED SOFTWARE in violation of this Agreement, copyright laws or
international treaty provisions.
3.2 LICENSEE acknowledges and understands that
WHEREAS, Vermont Database Corporation asserts that the LICENSED SOFTWARE
contains valuable trade secrets and proprietary information that are the
property of Vermont Database Corporation.
LICENSEE covenants and agrees not to encumber the LICENSED SOFTWARE in any manner, nor market, sell, assign,
lease, transfer, license or sub-license the LICENSED SOFTWARE or any OBJECT
CODE compiled from the LICENSED SOFTWARE, or any part or parts thereof, other than
in accordance with the terms and conditions of this Agreement.
3.3 LICENSEE shall protect the confidentiality of
the LICENSED SOFTWARE, and any documentation provided with the LICENSED
SOFTWARE, and of all trade secrets and proprietary or other confidential
information contained therein to at least the same degree as the protection
provided by LICENSEE with respect to LICENSEE’S own proprietary and
confidential materials. Notwithstanding
the preceding sentence, the protection required by LICENSEE under this
paragraph 3.3 shall not be less than reasonable protection. LICENSEE shall not allow or facilitate any
attempt to recreate, generate, or reverse-engineer any version or any portion
of any version of the LICENSED SOFTWARE by any person, nor shall LICENSEE aid
or permit others to do so.
3.4 LICENSEE acknowledges and agrees that
disclosure of the trade secrets or propriety or other confidential information
of WHEREAS, Vermont Database Corporation or use of the LICENSED SOFTWARE in
breach of this Agreement is likely to cause Vermont Database Corporation harm
for which damages may not be an adequate remedy, and that WHEREAS, Vermont
Database Corporation shall, therefore, be entitled to equitable relief to
restrain such breach, without prejudice to any other right or remedy.
3.5 LICENSEE agrees to indemnify and hold Vermont
Database Corporation harmless from and against any and all costs and reasonable
attorney fees incurred by Vermont Database Corporation in connection with any
action or proceeding brought by Vermont Database Corporation or any other party
as a direct or indirect result of any such unauthorized disclosure.
4. LIMITATION OF WARRANTY AND LIABILITY THE
LICENSED SOFTWARE AND ASSOCIATED DOCUMENTATION ARE PROVIDED “AS IS”, WITHOUT
WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WHEREAS, Vermont Database Corporation’S
MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE REFUND OF ALL
LICENSE FEES PAID TO Vermont Database Corporation UNDER THIS AGREEMENT. Vermont Database Corporation WILL NOT BE
LIABLE FOR ANY PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF USE, INTERRUPTION OF
BUSINESS, LOSS OF PROFITS, OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
5. COPYRIGHT INDEMNITY
5.1 Subject to the limitation on liability set
forth above, WHEREAS, Vermont Database Corporation will defend and indemnify
LICENSEE against any action against LICENSEE claiming that the unmodified
LICENSED SOFTWARE constitutes a direct infringement of any valid copyright
under the laws of the United States, Canada, or Europe, provided that Vermont
Database Corporation has sole control of such action and provided LICENSEE
notifies Vermont Database Corporation immediately in writing of the claim and
gives Vermont Database Corporation such authority, information and assistance
as are necessary to settle or defend such claim.
5.2 In the event of an infringement claim subject
to the foregoing indemnification, Vermont Database Corporation shall use
reasonable efforts on behalf of LICENSEE either to obtain the right to continue
using the LICENSED SOFTWARE or to replace or modify the LICENSED SOFTWARE so
that it becomes non-infringing. In the
event neither of these alternatives is reasonably available, the parties agree
to terminate this Agreement as to any infringing LICENSED SOFTWARE.
5.3 Vermont Database Corporation shall have no
liability for, and LICENSEE shall indemnify and hold Vermont Database
Corporation harmless from, any claim of infringement which would not have
arisen but for: (1) the use of other
than a current, unaltered version of the LICENSED SOFTWARE, or (2) the use of
LICENSED SOFTWARE that has been modified or merged with other programs or data.
6. MAINTENANCE
No
annual maintenance, technical support, or updates are included in the license
fee for the LICENSED SOFTWARE unless otherwise set forth on Exhibit “A”.
7. PAYMENT
7.1 One hundred percent (100%) of the initial
license fees are earned upon execution of this Agreement. License fees shall be payable in accordance
with the payment terms set forth in Exhibit “A”.
7.2 Unless otherwise set forth in Exhibit “A”,
invoiced license fees shall be due and payable 30 days after invoice date. After 30 days, interest shall accrue on the
unpaid balance of any license fee at the rate of 1.5% per month or partial
month that the fee or the interest accrued thereon remains unpaid.
8. GENERAL PROVISIONS
8.1 If any provision of this Agreement is declared
void or unenforceable by a court of competent jurisdiction, the validity of
this Agreement and all other provisions shall not be affected.
8.2 LICENSEE shall comply with all applicable laws,
including, without limitation, the export control laws of the United States and
prevailing regulations which may be issued from time to time by the United
States Department of Commerce and Office of Munitions Control, United States
Department of State, concerning the exporting, importing and re-exporting (to
the extent permitted under this Agreement) of the LICENSED SOFTWARE or
APPLICATION SOFTWARE incorporating OBJECT CODE compiled from the LICENSED
SOFTWARE. LICENSEE shall also comply
with the United States Foreign Corrupt Practices Act, and shall indemnify
Vermont Database Corporation from any failure to comply with or violation of
such Act by LICENSEE. LICENSEE shall, at
its sole cost and expense, obtain and maintain in effect all permits, licenses,
approvals, validations and other consents, and shall make any and all filings,
statements, reports and the like, required for the lawful performance, under
applicable laws, of its obligations under this paragraph. LICENSEE agrees that, regardless of any
disclosure made by any end-user of an ultimate destination of the LICENSED
SOFTWARE or APPLICATION SOFTWARE incorporating OBJECT CODE compiled from the
LICENSED SOFTWARE, LICENSEE will not, either directly or indirectly, export or
transfer, or knowingly permit to be exported or transferred, across any
national boundary any such software, or related proprietary material or any
direct product thereof, as defined in or specified by applicable regulations,
without first obtaining any and all licenses that may be required by the United
States Department of Commerce, Office of Export Administration, and any other
agency or department of any government, and without first complying with all
applicable laws and regulations, all at LICENSEE’s sole effort and expense. This provision shall survive any termination
or expiration of this Agreement.
8.3 This Agreement shall be governed and
interpreted in accordance with the laws of the State of Colorado, United States
of America.
8.4 The prevailing party in any legal action or
proceeding brought to enforce any term or provision of this Agreement shall be
entitled to recover its reasonable costs and attorney’s fees.
8.5 All notices, demands or consents required or
permitted under this Agreement shall be in writing and shall be delivered
personally or sent by certified or registered mail to the respective parties at
the addresses set forth on the first page of this Agreement, or at such other
addresses as may be designated by notice pursuant to the terms of this
paragraph. Such notices shall be deemed
to have been duly given upon personal service or three days after deposit in
the United States mail, postage prepaid.
8.6 Nothing contained in this Agreement shall
constitute either party an agent or representative of, or a joint venturer
with, the other, or authorize it to make any commitment or agreement on the
other’s behalf.
8.7 All payments required under this Agreement
shall be in United States dollars, and shall be net of all governmental taxes,
charges or fees other than taxes based on the receiving party’s income.
9. TERM AND TERMINATION
9.1 This Agreement shall be effective upon
execution by both parties.
9.2 Unless terminated earlier under the provisions
of this Agreement, this Agreement shall remain in force for a period of ten
(10) years from the effective date of this Agreement.
9.3 Either party shall have the right at its sole
discretion, to terminate this Agreement prior to the expiration of the term of
this Agreement upon the occurrence of the other party’s failure to pay any amounts
due under this Agreement or the other party’s failure to perform any of its
other obligations under this Agreement if the nonperformance is not corrected
within thirty (30) days after written notice.
9.4 Immediately after termination of this Agreement,
LICENSEE shall cease making or distributing copies of any APPLICATION SOFTWARE
incorporating OBJECT CODE compiled from the LICENSED SOFTWARE, and within two
(2) weeks shall destroy, or return to Vermont Database Corporation, at
LICENSEE’S expense, all copies of the LICENSED SOFTWARE and associated
documentation.
10. ENTIRE AGREEMENT
10.1 This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
supersedes all prior negotiations and agreements with respect to this subject
matter, whether oral or written.
10.2 APPENDIX “A” is incorporated as part
of this Agreement.
10.3 This Agreement shall not be modified
except by an instrument in writing signed by duly authorized representatives of
the parties.
|
LICENSEE |
Vermont
Database Corporation |
|
Company
Name, Address |
John
Elkins, CEO |
|
Authorized
Signature, Date |
Date |
1. Description of Licensed Source Code:
2. Authorized Users:
3. Payment Terms:
$
payable upon execution of this agreement.
4. Other Provisions:
Information
on Vermont Database Corporation products and services, including license
agreements, can be found at our web site, http://www.vermontdatabase.com, or
by sending email to mailto john@vermontdatabase.com.