Exhibit 10.8
PlaNet
SOFTWARE
Software License Agreement
This is a Software License Agreement as defined and governed by the Software
Development Agreement executed by Wasatch Interactive Learning and PlaNet
Software, Inc. signed and dated Nov. 4, 1997.
This License agreement ("Agreement") is between Wasatch ("Licensee") and PlaNet
Software, Inc. ("PlaNet") for a source code copy of the PlaNet Manager software
program and documentation developed by PlaNet. The PlaNet Manager software is
based on and developed using the PlaNet Component Objects for Remote Education
("C.O.R.E.").
1. GRANT OF LICENSE. Subject to the terms of this agreement, PlaNet grants to
Licensee a perpetual, world-wide, nonexclusive right (the "Product
License") to reproduce and distribute in object code form only the Product
software and the C.O.R.E. objects on which it is based. Licensee is further
granted the perpetual, world-wide, non-exclusrve, right ("Source Code
License") to produce derivative works of the Product. The C.O.R.E. object
code may be used to produce derivative works of the Product, but may not be
used for any other purpose.
PlaNet agrees not to sell any version of the Product or the PlaNet Manager
to Wasatch Education Systems or to any subsidiary selling Wasatch Education
System's software.
2. DEFENITIONS:
o The Product is defined as the unique version of the PlaNet Manager
being developed by PlaNet under contract for the Licensee.
o Object Code is defined as the compiled, intermediate, or binary
program modules used to produce final software applications. These
files cannot be used to modify the code.
o Derivative Works is defined as software produced from pre-existing
code (as opposed to purely new development) for the purpose of
enhancing original product. Derivative works add substantially to the
value of the original product.
o Source Code is defined as the original code written by the software
developer in its native and uncompiled form.
3. REDISTRIBUTION REQUIREMENTS. If Licensee distributes the PlaNet Manager
software (or any part thereof), Licensee agrees to:
o Distribute the software in object code only
o Include a valid and visible copyright notice on such software
application
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o Indemnify, hold harmless, and defend PlaNet from any claims or
lawsuits, including attorneys fees, that arise or result from the use
or distribution of such software application
o Not to incorporate the C.O.R.E. or any component thereof in any user
application which is a design tool, GUI builder, network management
tool, or other application which provides substantially similar
functionality as C.O.R.E. Any distribution of the source code for
PlaNet Manger or C.O.R.E. is strictly prohibited.
4. COPYRIGHT. Notwithstanding anything else, PlaNet retains all title to, and,
except as expressly and unambiguously licensed herein, all rights to the
PlaNet Manager and C.O.R.E.
5. TERMINATION OF LICENSE. The License remains effective unless terminated due
to a material breach by Licensee as determined by a court or by mediator as
provided for in section 9 of this agreement. Upon termination, Licensee
shall immediately cease all use of the Product and C.O.R.E. and return or
destroy all copies of the software and derivative works and so certify to
PlaNet.
6. WARRANTY DISCLAIMER. Licensee understands and acknowledges that the Product
and C.O.R.E. are based on the java programming language. And as such this
software is not intended for use in connection with any high risk or strict
liability activity (including without limitation, air travel, space travel,
fire fighting, police operations, power plane operation, military
operations, rescue operations, hospital and medical operations or the like)
and Licensee agrees not to use or allow the use of Product and/or C.O.R.E.
for or in connection with any such activity.
o The Product, C.O.R.E., and any services provided by PlaNet hereunder
are provided "as-is" without implied warranties including the implied
warranties of fitness for a particular purpose, noninfringement, and
merchantability, with regard to all work, deliverables, materials,
products, and/or services provided under this agreement.
o Further, PlaNet does not warrant, guarantee, or make any
representations regarding the use, or the results of the use, of
Product or C.O.R.E or written materials in terms of correctness,
accuracy, reliability, or otherwise.
7. TRANSFERABILITY/ASSIGNABILITY. The Product License is assignable by
Licensee with the following restriction. In the event that the License is
transferred or assigned, the C.O.R.E. may only be used to maintain and/or
enhance Product, the C.O.R.E may not be used for any other purpose or to
develop any Derivative Works. PlaNet may transfer or assign this Agreement
in whole or in part at any time. In the event PlaNet becomes unwilling or
unable to maintain the Product in the future, Licensee shall have access to
the source code held in escrow solely for the purpose of maintaining the
Product.
8. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid or unenforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any provision
of this Agreement is invalid or unenforceable, but that by limiting such
provision it would become valid and enforceable, then such provision shall
be deemed to be written, construed, and enforced as so limited.
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9. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver or
limitation of that party's right to subsequently enforce and compel strict
compliance with every provision of this Agreement.
10. MEDIATION AND DISPUTE RESOLUTlON.
o All claims, disputes and other matters in question, arising out of, or
relating to this agreement or the breach of this agreement shall be
submitted to non-binding mediation prior to any fling of any action in
court or to binding arbitration.
o Notice of the demand for non-binding mediation shall be filed in
writing with the other party to this agreement. The demand shall be
made within a reasonable time after the claim, dispute, or other
matter in question has arisen. In no event shall the demand for
non-binding mediation be made after institution of legal or equitable
proceedings based on such claim, dispute, or other matter in question
would be barred by the applicable statue of limitations.
o The award rendered by the mediators shall be non-binding. If a dispute
remains after the conclusion of the mediation, either party shall be
permitted to file an action in Court, and following the conclusion of
any such mediation, either party shall be allowed to file an action in
Court.
11. LIMITATIONS OF REMEDIES AND DAMAGES. Notwithstanding anything in this
agreement or otherwise, PlaNet shall not be liable or obligated with
respect to any subject matter of this agreement or under contract,
negligence, strict liability, or any other legal or equitable theory:
o for any amounts in excess in the aggregate of one half the fees paid
to PlaNet by Licensee for this copy of Product prior to the cause of
action,
o for any claim with respect to any end user application
o for any cost of procurement of substitute goods, technology, services
or rights
o for interruption of use or loss or corruption of data
o for any incidental or consequential damages
o for any action or omission by any third party
12. APPLICABLE LAW. This Agreement shall be governed by the laws of the State
of Utah. The parties agree to submit to the venue and jurisdiction of the
Utah courts located in Salt Lake City, Utah in disputes concerning this
agreement except as provided for in section 9 above.
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
President and CEO Wasatch Interactive Learning
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By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
President PlaNet Software, Inc
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