Exhibit 10.01
RESTRICTED USE LICENSE
Date: 4/10/2000 Contract Number: 003
This Agreement is made by and between Horn Interactive ("Horn"), an Ohio
corporation with its principal place of business at 000 X 0xx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000 and XxxXxxxxxx.xxx (the "Customer"), a corporation, with
offices at 0000 XxXxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxx 00000, for a License to use
the "Horn Interactive Products" described below and for related services under
the Terms and Conditions set forth in this Agreement.
As further described by this Agreement, the Horn Interactive Product(s) such
product(s) are as follows:
HORN LICENSE PUBLISHING PAYMENT
INTERACTIVE FEES FEES TERMS
PRODUCT
Web Server and Client $1.00 N/A Upon execution
Server Software of Agreement
License Use Restriction:
and the license fees for
A perpetual and royalty-free license for the sole use of operating and
maintaining of the OneDentist web site and related services for the use by
XxxXxxxxxx.xxx customers and users.
Approved Environment:
Windows 95 and Internet
The following Addenda also are included in and covered by this Agreement:
None
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1.Definitions
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1.1 "Horn Interactive Products" are the computer software program
products proprietary to Horn Interactive which are described and listed on page
1 and include the object code (but not the source code) of such software
programs and their related user or reference manual, if any, published by Horn
Interactive. Horn Interactive Products include, but are not limited to, Server
Applications and Client Applications, as defined below.
1.2 "Server Application" means a Horn Interactive Product that enables
a user to build and/or maintain web-based information.
1.3 "Client Application" means a Horn Interactive Product that allows
a web-based information product created by a Server Application to be displayed
on an end-user's workstation
1.4 "License Use Restriction" means the restriction on the scope of
the license for Horn Interactive Products granted Customer hereunder as set
forth on page 1. The License Use Restriction may also specify an "Intended Use".
If no License Use Restriction is specified, the scope of the license for Horn
Interactive Products granted Customer hereunder shall be for Customer's internal
use only, and no external distribution of Client Applications shall be
permitted. If no Intended Use is specified, the Intended Use of Horn Interactive
Products hereunder shall be the use of such products only in connection with
web-based information applications written by Horn Interactive for Customer.
1.5 "Approved Environment" means the computer and peripheral equipment
configuration, and operating system specified, for Horn Interactive Products on
page 1. If no Approved Environment is specified on page 1, the term means the
computer and peripheral equipment configuration and/or the operating system set
forth in the user or reference manual published by Horn Interactive for a Horn
Interactive Product, or, if none, that set forth in specifications published by
Horn Interactive.
2. Term
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This Agreement shall become effective on the date it is first signed
by both parties (the "Effective Date") and shall continue thereafter unless or
until terminated as provided for in Paragraph 8 hereof.
3. License
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3.1 Commencing on the last to occur of the Effective Date or the date
on which Horn Interactive delivers the Horn Interactive Products to Customer
Horn Interactive grants to Customer an exclusive license (the "License") during
the term of this Agreement to use the Horn Interactive Products solely for the
Intended Use, subject to the License Use Restriction and to the further
restrictions set forth in this Agreement for particular Horn Interactive
Products.
3.2 Reproduction: Permissive Use
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3.2.1 Customer may not copy or reproduce Server Applications or any
non-Client Application Horn Interactive Products except to make one copy of any
such products for backup or archive purposes only. Only one copy of any such
programs may be in use at any one time, and only by one user.
3.2.2 Customer may reproduce Client Applications as reasonably
necessary for the Intended Use under the License.
3.2.3 When Customer copies or reproduces all or any part of any Horn
Interactive Product, all titles, trademarks, copyright notices, legends, and
other proprietary markings must also be reproduced. All of the terms and
conditions of this Agreement shall apply to all such copies and reproductions.
3.3 Customer may not alter, disassemble, decompose or reverse engineer any Horn
Interactive Product in whole or in part, nor may Customer adapt a Horn
Interactive Product for use on non-compatible hardware.
3.3 Customer may not alter, disassemble, decompose or reverse engineer
any Horn Interactive Product in whole or in part, nor may Customer adapt a Horn
Interactive Product for use on non-compatable hardware.
3.4 External Distribution of Client Applications.
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If and only if the License Use Restriction specifies that Customer may
distribute Client Applications to Customer's customers and licensees, then the
following provisions shall apply:
3.4.1 External distribution of Client Applications shall be made only
in connection with the Intended Use.
3.4.2 All external distribution of Client Applications shall be
effected only by means of a license agreement between Customer and its customer,
which license agreement shall restrict use of Client Applications only to the
Intended Use and shall provide protection of Horn Interactive's proprietary
rights at least as stringent as those set forth herein.
3.5 Except as provided in this paragraph 3, no right to copy, modify,
use, distribute, or sublicense any Horn Interactive Product is granted to
Customer.
4. Confidentiality and Protection of Proprietary Rights
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4.1 Horn Interactive and Customer agree that the Horn Interactive
Products and all information relating to the Horn Interactive Products are the
confidential and proprietary information of Horn Interactive ("Proprietary
Information"), and are trade secrets of Horn Interactive. Customer agrees to
keep all aspects of the Proprietary Information completely confidential.
4.2 Customer shall protect and preserve all of Horn Interactive's
proprietary rights and shall not make any Proprietary Information available to
any person for any purpose other than (a) Customer's employees for the limited
purposes required by their employment; and (b) parties with which Customer has
entered into contractual arrangements pursuant to paragraph 3.4 above, all
subject to the terms of this Agreement.
4.3 The terms of this Paragraph 4 shall survive the termination of
this Agreement, however occurring.
5. Title
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Title to, ownership of, and all proprietary rights in and to all Horn
Interactive Products are reserved to and will at all times remain with Horn
Interactive and/or its licensors. All copies of Horn Interactive Products are
the sole property of Horn Interactive and Horn Interactive shall hold and retain
title thereto. Customer shall have only those limited license rights in the Horn
Interactive Products which are expressly granted in this Agreement.
6. Limitations of Warranty and Liability
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6.1 Horn Interactive warrants that it has full power and authority to
grant Customer the rights herein granted.
6.2 HORN INTERACTIVE MAKES NO OTHER WARRANTY TO EITHER CUSTOMER OR ITS
LICENSEES (IF PERMITTED HEREIN), EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
6.3 Customer shall promptly notify Horn Interactive of any claims made
against any of its Customers, or Horn Interactive or Horn Interactive's
licensors by any party with which Customer has entered into a contractual
arrangement pursuant to paragraph 3.4 hereof, and shall cooperate fully with
Horn Interactive and/or its licensors in the defense or handling of any claims
against Horn Interactive. Customer agrees to indemnify Horn Interactive and/or
its licensors against any claims which are brought against Horn Interactive
and/or its licensors arising from actions or inactions of Customer in entering
into contractual arrangements pursuant to paragraph 3.4, including attorneys'
fees and other costs of defending such claims, unless such claims relate to
actions or errors of Horn Interactive and/or its licensors encompassed by the
warranty of Horn Interactive set forth in paragraph 6.1 hereof.
6.4 IN NO EVENT WILL HORN INTERACTIVE AND/OR ITS LICENSORS, INCLUDING,
AS APPLICABLE, ASYMETRIX CORPORATION, BE LIABLE FOR ANY OF CUSTOMER'S INDIRECT,
SPECIAL, INCI DENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (OF CUSTOMER
OR ANYONE CLAIMING BY OR THROUGH CUSTOMER), EVEN IF HORN INTERACTIVE AND/OR
ITS LICENSORS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
REGARDLESS OF WHETHER ANY CLAIM FOR SUCH RECOVERY IS BASED UPON THEORIES OF
CONTRACT, NEGLIGENCE, OR TORT (INCLUDING STRICT LIABILITY). CUSTOMER HEREBY
WAIVES, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, ANY AND ALL CLAIMS FOR
INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
6.5 Horn Interactive's aggregate liability for damages to Customer for
any cause whatsoever, and regardless of the form of action including contract,
tort, fraud, computer malpractice, products liability, strict liability and/or
otherwise shall be limited to the greater of $10,000 or the amounts Customer has
paid Horn Interactive under this Agreement.
7. Payment
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7.1 Customer agrees to pay to Horn Interactive the amount set forth on
page 1 of this Agreement, due and payable as set forth on page 1.
7.2 The fees payable hereunder do not include any applicable taxes
imposed on the license by Horn Interactive to Customer of Horn Interactive
Products. The amount of such taxes, exclusive of Horn Interactive's property
taxes and taxes based upon Horn Interactive's net income, shall be paid by
Customer.
8. Termination
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8.1 Either party may terminate this Agreement by written notice to the
other party in the event such other party neglects or fails to perlorm or
observe any material term or obligation and fails to remedy such neglect or
failure for a period of thirty (30) days after written notice thereof by the
non-defaulting party.
8.2 Horn Interactive may terminate this Agreement immediately by
notice to Customer in the event (i) CustomerS fails to cure a default in any
payment obligation hereunder within five (5) days after Horn Interactive's
notice to Customer thereof, or (ii) any Custom Services Agreement between Horn
Interactive and Customer which relates to the Horn Interactive Products is
terminated prior to payment in full by Customer to Horn Interactive of all
amounts due thereunder.
8.3 So long as Customer has paid Horn Interactive all amounts due Horn
Interactive hereunder, Customer may terminate this Agreement at any time upon
thirty (30) days written notice to Horn Interactive.
8.4 Upon termination of this Agreement, for any reason, Customer shall
immediately deliver to Horn Interactive or destroy the originals and all copies
(whether or partial or whole, and regardless of form) of the Horn Interactive
Products, except for those copies of Client Applications which Customer has
licensed to its customers, if permitted under Paragraph 3.4 hereof. If Customer
destroys these materials, Customer agrees to certify in writing to Horn
Interactive within thirty (30) days after termination of the License that the
materials have been destroyed. Customer may not use the Horn Interactive
Products after this Agreement has terminated.
9. Miscellaneous
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9.1 Customer may not assign, delegate or otherwise transfer its rights
or obligations under this Agreement except with the written consent of Horn
Interactive, which consent may be withheld for any reason or no reason. Any
prohibited assignment will be void.
9.2 All notices, requests or other communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been given
when received at, or when sent by registered or certified mail, postage prepaid,
return receipt requested, to the addresses of each party first set forth above.
Either party may, by notice to the other, given in accordance with this
paragraph, change its address for notices.
9.3 This Agreement is made subject to any restrictions concerning the
export of Horn Interactive Products from the United States which may be imposed
upon or related to Customer or the Horn Interactive Products from time to time
by the government of the United States of America. Customer agrees that it will
not export from the United States, directly or indirectly, any Horn Interactive
Product, or technical information therefrom, acquired from Horn Interactive
under this Agreement without first obtaining the written consent to do so from
Horn Interactive.
9.4 Government Control Provision.
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9.4.1 This paragraph is applicable only if the License Use Restriction
specifies that Customer may distribute Client Applications to Customer's
customers and Customer proposes to supply Client Applications to the U.S.
Government under a prime contract or to a contractor operating under a U.S.
Government contract.
9.4.2 Customer shall take such actions and steps as are necessary or
required under the Federal Acquisition Regulations ("FAR") or the Department of
Defense Federal Acquisition Regulations Supplement FAR ("DFARS"), as in force
presently or as amended hereafter, to preserve to Horn Interactive all rights in
and to the Client Applications other than those expressly granted in this
Agreement, including, but not limited to, incorporating applicable clauses and
provisions in any contract with the U.S. Government.
9.4.3 All copies of Client Applications provided under this clause
shall include the following notice (or such successor notices provided by Horn
Interactive or as may be required from time to time by government regulations to
preserve similar rights) affixed on a label permanently attached to the media
containing the Client Application code:
U.S. GOVERNMENT RESTRICTED RIGHTS
LEGEND
Use, duplication, or disclosure by the Government is subject to
restrictions as set forth in Subparagraph (c)(1)(ii) of the Rights in
Technical Data and Computer Software clause at DFARS 252.227-7013
(Customer will insert here Customer's name and address]
9.5 This Agreement is the entire agreement between the parties hereto
in respect of the subject matter hereof and supersedes all prior agreements and
understandings, both oral and written, between the parties hereto with respect
to the subject matter hereof. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns.
9.6 No action, regardless of form, arising out of or in connection
with this Agreement may be brought by either party more than two years after the
cause of action has accrued.
9.7 Any terms of this Agreement may be amended, modified or waived
only with the prior written consent of the party against whom enforcement of
such amendment, modification or waiver is sought. This Agreement shall be
governed by and construed in accordance with the laws of the State of Ohio. The
headings herein are for convenience only and shall not be deemed to limit or
otherwise affect the constructions hereof. If any provision of this Agreement
shall be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of all other provisions of this Agreement shall not
in any way be affected or impaired.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed to be effective as set forth above.
HORN INTERACTIVE, INC.
By /s/
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Title
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Date 2-1-00
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CUSTOMER XxxXxxxxxx.Xxx, Inc.
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By /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Title President
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Date 2-15-00
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