xBaseJ - Source License
xBaseJ SOURCE CODE LICENSE AGREEMENT
1. INTRODUCTION
1.1. This is an Agreement, effective as of the __ day of ___ month in _____ year ("Effective Date") between American Coders, Ltd. ("Vendor") and its customer _______________ ("Customer")at location _____________________________________________________________("Authorized Location") under which Vendor is licensing software on a non-exclusive basis for the customer's own use under the terms and conditions stated below.
2. DEFINITIONS
As used in this Agreement, the following definitions shall apply:
2.1. "Agreement" shall mean this Agreement between Vendor and Customer.
2.2. "Confidential Information" shall mean any information relating to or disclosed in the course of the Agreement, which is or should be reasonably understood to be confidential or proprietary to the disclosing party. "Confidential Information" shall not include information (a) already lawfully known to the receiving party, (b) disclosed in published materials, (c) generally known to the public or (d) lawfully obtained from any third party.
2.3. "Customer" shall mean the party so designated on the first page of this agreement.
2.4. "Derivative Work" shall mean any work sufficiently based upon the Program such that copying it without permission would infringe on the copyright of the Program.
2.5. "Delivery Date" shall mean the date that Vendor ships the Program to Customer.
2.6. "Documentation" shall mean the user manual(s) and any other materials supplied by Vendor for use with the Program or with any Release.
2.7. "Effective Date" shall mean the date set forth above.
2.8. "License Fee" shall mean the fee for licensing the Program or Programs specified in the Program Description and Price Schedule attached as Schedule A to the Agreement.
2.9. "Program" shall mean the source code of xBaseJ - dBase Access For Java together with its Documentation, as further described in Schedule A.
2.10. The term "Release" shall mean any version of a Program or any materials which are supplied by Vendor at or after the delivery of a Program, including any software provided for the purpose of improving the functions or performance of the Program, changing the intellectual property contained in the Program, expanding the capability or ease of operation of the Program, or for the purpose of fixing errors in program logic, together with Documentation.
2.11. The term "Software Support" shall mean support and maintenance services for Programs provided for in this Agreement.
2.12. The term "Software Support Fee" shall mean that applicable annual fee due for Software Support in accordance with Vendor's Software Support Schedule.
2.13. The term "Software Support Schedule" shall mean Vendor's written statement of Software Support offered and the fees due for such Software Support as it may be in effect from time to time. Vendor reserves the right to change the Software Support Schedule without notice.
2.14. The term "Supported Products List" shall mean a list of Program versions, together with associated computer hardware and operating system software platforms, for which Vendor provides Software Support. Vendor reserves the right to change the Supported Products List without notice.
2.15. "Vendor" shall mean American Coders, Ltd Post Office Box 97462 Raleigh NC 27624
2.16. The term "Authorized location" shall mean the authorized location set forth above
3. GRANT OF LICENSE
3.1. Vendor hereby grants to Customer, and Customer hereby accepts, a non-exclusive license to use the Program subject to the terms and provisions of this Agreement.
3.2. The license granted by this Agreement authorizes use of the Program only at the Authorized Location by employees of Customer ("Authorized Users"), except as provided for in 3.5 below.
3.3. Customer shall maintain adequate records of usage and copying of the Program by Authorized Users to assure compliance with the limitations of this license. Such records shall be available to Vendor for inspection upon reasonable request.
3.4. Where a Program is properly licensed for a particular workstation, Authorized Users of the Program at such workstation may install a copy of the Program on a single home and/or a single portable computer without the Customer paying an additional license fee, if (a) such use constitutes no more than twenty (20) percent of such Authorized User's usage of the Program and (b) the Authorized User has only one copy of the Program in use at any time. Customer shall take all necessary steps to assure compliance with the limitations of this provision.
3.5. Customer shall have no rights to distribute the Program to any third parties. Vendor grants the rights for the Customer to distribute binary code developed and compiled from the Program as part of a Customer product as follows:-
3.5.1 Vendor grants the rights to a non-exclusive royalty free license to reproduce and distribute Derivative Works in machine readable binary code format ("REDISTRIBUTABLES")
3.5.2 The REDISTRUBUTABLES can only be distributed in object code form
3.5.3 Customer shall not use Vendors name, trademarks, logo or copyrighted materials to market Customer products. except as expressly provided for in Paragraph 3.5.4 below.
3.5.4 Customer shall include a copyright notice and any other legends specified by Vendor as part of Customer product.
3.5.5 Customer shall indemnify, hold harmless and defend Vendor from and against any claims or lawsuits, including attorney's fees and any resulting costs, that arise or result from the distribution of Customer products.
3.5.6 Customer will not permit further distribution of the Program unless express written permission is obtained from Vendor.
3.5.7 Any products developed by Customer will contain terms and conditions reasonably calculated to protect the parties' proprietary rights in the Software and acceptable to Vendor. These conditions will be at least as protective of Vendor as those included in the binary code license used by Vendor
3.5.8 Customer will not redistribute the program in a product that is competitive with Vendor's current and future products.
4. SCOPE OF THE AGREEMENT
4.1. This Agreement shall apply to each Program or Release of a Program that Customer is currently licensing from Vendor or shall license in the future.
5. RESTRICTION AGAINST THIRD PARTY USE
5.1. The Program may not be used by any person or entity that is not an Authorized User.
6. COPIES OF THE PROGRAM
6.1. Vendor shall furnish to Customer one copy of the Program.
6.2. Customer shall have the right to make one copy of the source code for the Program solely for archive purposes. On such archival copy, Customer shall mark copyright, trademark, patent, and/or trade secret notices identical to those on the copy of the Program provided to Customer.
6.3. Vendor shall furnish to Customer one electronic copy of the Documentation. Upon request, at Vendor's option, additional copies of the Documentation may be supplied to Customer at Vendor's then current price. Customer may not, without the prior written consent of Vendor, copy or otherwise reproduce any Documentation.
6.4. Customer shall be entitled to make unlimited additional copies of the Program and Documentation to the extent necessary for use of the Program by Authorized Users at the Authorized Location. Customer shall reproduce and include copyright or trade secret notices and any other legends included in the Program, on any and all copies in the same form as included in the copies provided to Customer.
7. INSTALLATION
7.1. Installation of the Program shall be Customer's responsibility. Customer shall follow the installation procedures contained in the Documentation.
8. ACCEPTANCE
8.1. The Program will be deemed accepted when the Program has been installed and performs substantially as described in the Documentation.
9. PAYMENT OF PROGRAM LICENSE FEE
9.1. In consideration of the license granted under this Agreement, full payment of $2500.00 is due to the Vendor from the Customer upon execution of this agreement.
10. OPTION TO RETURN PROGRAM
10.1. For a period of thirty (30) days ("Return Option Period") after delivery of the Program under this Agreement or until any Redistribution of the program occurs, Customer shall have the option to return the Program. Return of the Program will void this agreement. Customer will inform Vendor in writing of such a decision. IF CUSTOMER EXERCISES THIS OPTION, VOIDING THIS AGREEMENT SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING FROM OR RELATING TO THE PROGRAM. ADDITIONALLY, CUSTOMER WILL RETURN ALL COPIES OF THE PROGRAM AND MAY NOT DISTRIBUTE OR OTHERWISE UTILISE ANY DERIVED WORKS.
11. ACKNOWLEDGMENT OF VENDOR'S OWNERSHIP RIGHTS
11.1. Customer acknowledges that it obtains no ownership rights in the Program under the terms of this Agreement. All rights in the Program including but not limited to Confidential Information, trade secrets, trademarks, service marks, patents, and copyrights are, shall be and will remain the property of Vendor. All copies of the Program delivered to Customer, or made by Customer remain the property of Vendor.
12. CONFIDENTIAL INFORMATION
12.1. Customer acknowledges that the Program and the Documentation contain proprietary and Confidential Information of Vendor. Customer agrees to keep the Program and Documentation in confidence and to take all reasonable precautions to ensure that no unauthorized persons have access to the Program and Documentation and that no unauthorized copies are made. Breach of this provision shall be grounds for immediate termination of this Agreement without further obligation to Customer, at Vendor's option.
12.2. Customer may not alter any proprietary markings on the Program, including copyright, trademark, trade secret, and patent legends.
13. CUSTOMER'S OBLIGATION FOR DATA PROTECTION
13.1. Vendor understands that Customer may perform daily backups of the data on the computer system used by the Program so that the likelihood of data loss is minimized. Customer shall be solely responsible for backup software and hardware. Customer shall provide the safe storage of all backup tapes and/or disks in order to ensure compliance with the terms of this Agreement. Customer shall be responsible for keeping its computer system free of computer viruses.
14. WARRANTY
14.1. The Program is delivered "as is" without any warranties of any kind. Specifically, Vendor does not warrant that the Program will be error free or that the Program will run without interruption
14.2. VENDOR DISCLAIMS ALL OTHER WARRANTIES, EITHER STATURORY, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO THE PROGRAM AND THE ACCOMPANYING WRITTEN MATERIALS.
14.3. VENDOR WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF DATA, LOST OPPORTUNITIES, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER ANY CIRCUMSTANCES.
14.4. The Program is not fault-tolerant and is not designed, manufactured or intended for use in on-line control equipment in hazardous environments requiring fail-safe performance in which failure of Program or REDISTRIBUTABLES or Derived Works could lead directly to death, personal injury or severe physical or environmental damage ("high Risk Activities"). Customer will not use Program to distribute or resell REDISTRIBUTABLES or Derived Works for High Risk Activities.
15. OVERALL LIMITATION OF DAMAGES
15.1. IN NO CASE SHALL THE AGGREGATE AMOUNT OF DAMAGES PAYABLE TO CUSTOMER FROM ANY AND ALL PARTIES FOR ANY CLAIM ARISING FROM THE PROGRAM OR THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION ITS INDEMNIFICATION PROVISIONS) EXCEED THE AMOUNTS PAID BY CUSTOMER TO VENDOR UNDER THIS AGREEMENT.
16. INDEMNIFICATION
16.1. Vendor agrees to indemnify and hold Customer harmless against any loss, damage, expense, or cost, including reasonable attorneys' fees, arising out of any claim, demand, or suit asserting that the Program infringes or violates any copyright, patent, trade secret, trademark, or proprietary right existing under the laws of the United States or any state or territory thereof ("Claim"), subject to the overall limitation of damages hereunder.
16.2. The indemnification obligation in this section shall be effective only if (1) at the time of the alleged infringement, Customer was using a currently supported version of the Program listed in Vendor's then current Supported Products List, (2) Customer gave prompt notice of the Claim and permitted Vendor to defend, and (3) Customer has reasonably cooperated in the defense of the claim. Vendor shall have no obligation to Customer to defend or satisfy any claims made against Customer that arise from the use, sale, licensing or other disposition of the Program by Customer other than as permitted by this Agreement or from the Customer's modification of the Program.
16.3. To reduce or mitigate damages, Vendor may at its own expense procure the right for Customer to continue licensing and distributing the Program or replace it with a non-infringing product. If Vendor supplies a non-infringing Release of the Program, Customer shall promptly install it on its computer system, and terminate use of prior Releases of the Program. If Customer is not entitled to such non-infringing Release under the terms of the Vendor's Software Support arrangement with Customer, Customer shall pay any applicable fee for upgrading to the non-infringing Release, as stated in Vendor's then current fee schedule, within thirty (30) days of delivery of such Release. If, in its judgment, Vendor deems that, due to the Claim or for any other reason, it is not in Vendor's practical interest to continue distributing a Program, Vendor may require customer, upon thirty (30) days written notice, to terminate use of a Program. Thirty days after notice to terminate use of a Program, this Agreement shall terminate as to the Program involved, Customer shall receive a refund of a percentage of the current year's Software Support Fee for the Program corresponding to the remaining portion of the year, and in addition, if such termination takes place during the first year after the Delivery Date, a refund of a percentage of the License Fee for such Program corresponding to the remaining portion of the first year. THE FOREGOING IS CUSTOMER'S EXCLUSIVE REMEDY AGAINST ANY AND ALL PARTIES FOR ANY CLAIM ARISING FROM OR RELATING TO LOSS OF USE OF THE PROGRAM OR TO ANY OTHER DAMAGE ARISING AS A RESULT OF THIS PROVISION.
17. SOFTWARE SUPPORT
17.1. Customer shall receive software support for the product free of charge for one (1) year from the Effective Date ("Warranty Period"). The support will be limited to resolving any errors or malfunctions in the Program. Vendor is not responsible for supporting any Derived Works. Vendor is not responsible for any errors or malfunctions caused by hardware or third party operating systems.
17.2. During the Warranty Period specified above, Customer shall be entitled to software support without additional charge. "Expiration Date" shall mean each anniversary of the Effective Date. Before each Expiration Date, Customer shall be billed for the then applicable annual Software Support Fee. If Customer has paid the applicable Software Support Fee on or before the Expiration Date, Customer shall be entitled to receive an additional year of Software Support. Vendor shall have no obligation to provide Software Support after the Expiration Date if the applicable Annual Software Support Fee is unpaid.
17.3. The Software Support Fee shall be sent to Vendor at the address set forth above, or such other address as Vendor may designate. Information as to the amount of the currently applicable Software Support Fee for the Program is available from the Vendor on request.
17.4. Vendor's current policy is to support the most recently released version of the software and the next prior version, and to cease maintenance of earlier versions. However, Vendor reserves the right to change this policy in its discretion and reserves the right to discontinue support of Programs or versions of Programs for hardware and/or operating systems that are used by numbers of customers that Vendor deems inadequate to justify the cost of support.
17.5. Customer agrees that in order to receive Software Support for the Program, Customer must use a currently supported version of the Program, as listed in Vendor's Supported Products List, which is available from Vendor. Customer acknowledges and agrees that it may be necessary to update its computer hardware and/or operating system to achieve compatibility with the currently supported version. Customer acknowledges and agrees that if it has allowed its subscription to Software Support to lapse, and if its version of the Program is not currently supported, it may have to obtain a current version to obtain Software Support, as is discussed below.
17.6. If Customer is not using a currently supported version of the a Program as listed in Vendor's Supported Products List, Vendor may suspend provision of Software Support for the Program, until Customer cures this condition, without refunding the Software Support Fee.
17.7. Customer may terminate Software Support by written notice to Vendor prior to any Anniversary of the Effective Date. However, Vendor shall not be required to refund any Software Support Fee.
17.8. If Software Support has been terminated or has lapsed, Customer may reinstate its subscription to Software Support upon payment of the annual Software Support Fee in effect at the time. Upon reinstatement of Software Support, Customer will be upgraded to the current version of the Program.
17.9. Vendor will not provide software support for any recipients of redistributed components. Customer will be responsible for providing software support to such recipients. Such Customer provided support will include, but is not limited to, (i)redistributing new REDISTRIBUTABLES that reflect any software changes made to the Program by Vendor,
(ii)redistribution of any new software versions,
(iii) assist in diagnosing errors or malfunctions even if these are a direct result of the use of products that were derived from the Program.
(iv) assist in diagnosing errors or malfunctions arising from interaction between any redistributed components and commercially available third party products even if these products are Derived Works of the Program or other Vendor products.
18. RESTRICTIONS ON TRANSFER TO A NEW LOCATION
18.1. Customer may not transfer the storage or operation of a Program to a location other than the Authorized Location except that Customer may move Program to a new site within 20 miles of Authorized Location. Customer will notify Vendor in writing within five (5) days of such a move.
18.2. If the storage and operation of a Program is moved to a location other than a Permitted New Location, Vendor may suspend Software Support. However, Vendor shall not be required to refund any Software Support Fee.
18.3. If Customer is temporarily unable to use a Program at the Authorized Location because of conditions beyond Customer's control, Customer may use the Program at another location on a temporary basis. Such use, if not otherwise authorized by this Agreement, shall be permitted only as long as is necessary in response to such conditions. Customer shall provide Vendor notice within five (5) days if this provision is invoked, and shall also give notice within five (5) days when the Program is returned to the Authorized Location.
18.4. In case of any move of the Program permitted under this Agreement, shipment of the Program to the new site shall be at Customer's sole expense, risk, and control, and Customer shall be solely responsible for the protection of the Program during transport and while at the new site.
19. TERM AND TERMINATION
19.1. The term of this Agreement shall commence upon the Effective Date and shall continue in effect until terminated as provided for herein.
19.2. It is agreed that either party may terminate this Agreement immediately upon written notice to the other party in the event that such other party (a) becomes insolvent or makes an assignment for the benefit of creditors; (b) files or has filed against it any petition under any Title of the United States Code or under any applicable bankruptcy, insolvency, reorganization or similar debtor relief law which is not discharged within thirty (30) days of said filing, or (c) requests or suffers the appointment of a trustee or receiver, or the entry of an attachment or execution as to a substantial part of its business or assets.
19.3. Vendor may terminate this Agreement, and the license provided for herein, in the event Customer (a) fails to make when due any License Fee payment or other terms required under this Agreement; (b) commits a material breach of any of its obligations concerning scope of use or the protection of the Program, Documentation, intellectual property of Vendor, and Confidential Information; or (c) materially breaches any of its other obligations under any provision of this Agreement, which breach is not remedied within thirty (30) days after notice thereof by Vendor to Customer.
20. RIGHTS UPON TERMINATION
20.1. Upon termination of this Agreement, Customer's license to use the Program shall terminate, and Customer shall immediately turn over to Vendor all copies of the Program and Documentation, and any other Confidential Information relating to the Program and Documentation and shall remove and erase completely any copies of the Program installed or recorded on any hard disk or other storage medium. Customer is not required, however, to recall any previously shipped Derivative Works or products containing REDISTRIBUTABLES described in section 3.5. Customer shall promptly certify to Vendor in writing that it has complied with this requirement.
20.2. Upon termination of this Agreement, Customer shall pay to Vendor all fees due through the effective date of such termination. Unless otherwise specified herein or otherwise agreed in writing, all fees collected or accrued prior to the date of termination shall be retained by Vendor without any pro rata refund to Customer.
20.3. The termination of this Agreement shall not extinguish any rights or obligations of the parties relating to protection of Confidential Information.
21. ASSIGNMENT
21.1. Customer may not sell, pledge, assign, sublicense, or otherwise transfer or share its rights or delegate its obligations under this Agreement without the prior written consent of Vendor, which Vendor may withhold in its sole discretion. Any attempted sale, pledge, assignment, sublicense or other transfer in violation hereof shall be void and of no force or effect. Vendor may assign its rights and delegate its duties hereunder at any time without the consent of Customer.
22. GENERAL PROVISIONS
22.1. Applicable Law. This Agreement shall be construed pursuant to substantive law of the State of North Carolina .
22.2. Shipping Costs and Risk of Loss. All costs relating to the shipment of the Program and the Documentation, including freight and insurance costs, shall be borne by Customer. Upon delivery of the Program and the Documentation, Customer shall assume all risk of loss and damage to the Program and the Documentation, and shall at its sole cost and expense replace any lost or damaged portion thereof.
22.3. Taxes. Customer shall pay, in addition to the other amounts payable under this Agreement, all local, state and federal excise, sales, use, personal property, gross receipts and similar taxes (excluding taxes imposed on or measured by Vendor's net income) levied or imposed by reason of the transactions under this Agreement. Customer shall, upon demand, pay to Vendor an amount equal to any such tax actually paid or required to be collected or paid by Vendor.
22.4. Required Consents. Customer warrants that it has obtained lawful permission to use all hardware and software required in order for the Program to be used on Customer's computer system.
22.5. Public Reference. Customer consents to the public use of its name as a customer of Vendor.
22.6. Modification. This Agreement may not be modified or amended except by writing which is signed by authorized representatives of each of the parties.
22.7. Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the control of such party ("Force Majeure") provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay. In the event of such Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not in excess of three (3) months.
22.8. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter hereof and supersedes any prior oral or written promises or agreements except for the Escrow Agreement described in section 21. There are no promises, covenants or undertakings other than those expressly set forth in this Agreement.
22.9. Equitable Remedies. The parties recognize that money damages is not an adequate remedy for any breach or threatened breach of any obligation hereunder by Customer involving intellectual property, Confidential Information or use of the Program beyond the scope of the license granted by this Agreement. The parties therefore agree that in addition to any other remedies available hereunder, by law or otherwise, Vendor shall be entitled to an injunction against any such continued breach by Customer of such obligations.
22.10. Attorney's fees. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the prevailing party shall not be entitled to recover reasonable attorney's fees and other costs incurred in that action or proceedings in addition to any other relief to which they may be entitled.
22.11. EXPORT. Customer shall not export, re-export or transfer, whether directly or indirectly, the Program or Derived Works or REDISTRIBUTABLES, to any person or company who is a legal resident or is controlled by a legal resident of any proscribed country listed in the U.S. Export Administration Regulations (or any equivalent thereof) unless properly authorized by the U.S. Government.
So agreed between the parties signing below.
For American Coders, Ltd.
BY:
PRINT NAME:
TITLE:
For Customer.
BY:
PRINT NAME:
TITLE:
Schedule C
SOFTWARE SUPPORT
1. SERVICES PROVIDED.
Software Support shall consist of the following services:
1.1. Customer shall notify Vendor of any errors and malfunctions which occur when the Program is used by Customer. Vendor is not responsible for errors or malfunctions caused by any hardware or any third party operating system or any third party applications.
1.2. Vendor shall provide support services to Customer to attempt to correct diagnosed material errors and malfunctions in accordance with Vendor's support policies. Vendor shall attempt to provide Releases that implement corrections and shall attempt to assist Customer in using the Program in a way that can avoid diagnosed errors, malfunctions and defects.
1.3. Vendor shall provide support services to Customer to attempt to keep the Program compatible with the then current version of the operating system of the computer hardware.
1.4. Vendor may provide Customer with new Releases for the Program licensed to Customer in accordance with Vendor's support policies. Releases may include new features and functions added to the Program and/or may provide corrections to errors or malfunctions. The timing and content of Releases will be at the sole discretion of Vendor.
1.5. Vendor will effect delivery of each Release to Customer. All deliveries and shipments of Releases will be at Vendor's expense. Customer will be solely responsible for redistribution of any releases and updates.
1.6. Vendor will provide reasonable technical support concerning use of the Programs. Diagnosis of problems or errors will be by telephone or electronically via e:mail or through Internet using the American Coders Ltd.'s World Wide Web site www.americancoders.com unless other arrangements are made.
1.7. Vendor shall provide Customer with telephone number(s) and/or other contact information in order to allow Customer to accomplish the required notification and request information.
1.8. Software Support does not entitle Customer to software modules available from Vendor which are designed to add additional applications or to cover business functions that are not included in the Program currently licensed to Customer. Such software modules may be licensed from Vendor. If such additional software modules are licensed by Customer, Releases relating to them will be available as part of Software Support under this Agreement.
2. CONDITIONS OF SOFTWARE SUPPORT.
The following terms and conditions shall apply at all times while Software Support are in effect:
2.1. Customer shall supply Vendor with access to the computer hardware, system software, the Program and customer data files through the use of telephone line(s) and modem(s) or via Internet. The computer system must be equipped by Customer, at Customer's expense, with hardware and communications software approved by Vendor capable of originating telephone calls to and receiving calls from Vendor. Specification for suitable communications hardware and software are available from Vendor on request.
2.2. Customer may request Software support which is not covered by Section 2.1 above. In such cases Vendor will promptly supply Customer with terms and conditions for such support.
2.3. Customer shall designate an individual who shall be the System Manager. The System Manager must have a working knowledge of the Program and the system hardware and will be responsible for the computer system backups, user access, and for recording and reporting errors and malfunctions.
Schedule A - Source codeSource code for American Coders Ltd.'s xBaseJ