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EXHIBIT 10.15
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("Agreement") is entered into this the day of _______,
1999, ("Effective Date") by and between OpenSite Technologies, Inc.
("Licensor"), and ________________________________________________________
("Licensee").
AGREEMENT
1. DEFINITIONS. Unless otherwise defined herein, the following terms shall have
the meanings set forth below:
1.1. "Customization" - means any modification of or changes to the
Software performed by or on behalf of Licensor pursuant to a services
agreement.
1.2. "Customized Software" - means the Software modified by Licensor for
Licensee pursuant to a services agreement executed by Licensor and
Licensee.
1.3. "Defect" - means a material failure of the Software to substantially
conform to the functional specifications set forth in the current
published Documentation.
1.4. "Derivative Works" - means works of authorship based on one or more
pre-existing works of Licensor which are created by Licensor or on behalf
of Licensor, including Documentation, Software, Enhancements, Updates
thereto, in whatever form the work may be recast, transformed or adapted,
including translations, ports and screen reformatting.
1.5. "Designated Location" - means the CPU at the physical location
identified in Exhibit A on which Licensee may use the Software and a
single web site domain address (such as xxx.xxxxxxxx.xxx).
1.6. "Designated Operating Environment" - means the computer hardware and
software identified in Exhibit A, with which Licensee may use the
Software.
1.7. "Development Work" - means original computer software developed by or
on behalf of Licensor for Licensee pursuant to a services agreement
executed by Licensor and Licensee.
1.8. "Documentation" - means the written, electronic, or recorded work
provided to Licensee in connection with the Software that describes the
functions and features, of the Software, including end user manuals.
1.9. "Enhancements" - means any software program, any part thereof, or any
improvement or addition thereto, or any materials not included in the
Software at the time of execution of this License, or that are
subsequently developed by Licensor, or on behalf of Licensor, which modify
the Software to provide a function or feature not originally offered or an
improvement in function and which relate to the Software and which are not
major modifications and separately priced by Licensor.
1.10. "Executable Code" - means the compiled or interpreted machine
readable program code executed by a computer to perform the functions of
the Software.
1.11. "License Fee" - means fees charged for the License.
1.12. "Licensed Materials" - means the Software, Customized Software and
Development Work, if any, and Documentation covered by this Agreement or
services agreement between the parties hereto.
1.13. "Permitted Users" - means those employees of Licensee who have been
trained properly in the use of and are able to use properly the Licensed
Materials.
1.14. "Software" - means the computer software program(s) covered by this
Agreement and described on Exhibit A attached hereto and made a part
hereof and all Updates and Enhancements thereto.
1.15. "Third Party Product" - means those third party software and
hardware products provided to Licensee by Licensor if any, all as further
described in Exhibit A attached hereto, subject to the terms and
conditions set forth herein.
1.16. "Updates" - means program logic changes made by Licensor to correct
Defects in the Software delivered hereunder.
2. LICENSE GRANT.
2.1. LICENSE TO SOFTWARE. Except as otherwise provided herein, Licensor
hereby grants to Licensee a perpetual, non-exclusive, non-transferable
license to use the Software and Documentation as set forth herein. Except
as otherwise expressly set forth in a services agreement, upon the
completion, delivery and acceptance of any Development Work or
Customization pursuant to a services agreement, such Customization or
Development Work shall be considered part of and incorporated into the
Software and shall be subject to the terms and conditions of this
Agreement.
2.2. LICENSE TO THIRD PARTY PRODUCT. Licensor hereby grants to Licensee a
license to use the Third Party Product if any only as subject to the terms
and conditions of this Agreement and the terms and conditions applicable
to a particular product as set forth on Exhibit A. In the event of a
conflict between the terms and conditions of this Agreement and Exhibit A,
the terms and conditions of Exhibit A shall control.
2.3. USE. Licensee shall have the right to use the Software on a single
CPU at the Designated Location. The right to use the Software does not
include use by Licensee's affiliates or subsidiaries. Licensee shall have
the right to use the Software and Documentation only as set forth in this
Agreement or in the Documentation. Any other use of the Software shall
constitute an Event of Default under this Agreement. Unless otherwise
agreed by the parties hereto in writing, Licensee shall not use the
Software in the operation of a service bureau or time sharing arrangement
or provide same to a disaster recovery provider; nor shall Licensee
modify, assign, sublicense, sell or rent the Software. Any rights not
expressly granted herein are hereby expressly reserved to Licensor.
Licensee understands and agrees that, in order to facilitate quality
control, whenever an error message is generated in connection with
Licensee's use of the Software, a copy of the error message is emailed to
Licensor.
2.4. ACCESS. Access to the Software shall be granted only to Permitted
Users.
2.5. SINGLE POINT OF CONTACT. Licensee shall designate a single point of
contact to communicate with Licensor in all matters relating to this
Agreement, including notifications of changes to Permitted Users at
Designated Location(s)or the Designated Operating Environment.. The
identity of the contact may be changed upon five (5) days written notice
to Licensor.
2.6. CHANGES. No changes with regard to the Designated Locations,
Permitted Users, or the Designated Operating Environment shall be made
without the written consent of Licensor.
2.7. COPIES. Licensor shall deliver one (1) copy of the Software, in
Executable Code form, and one (1) copy of the accompanying Documentation
to Licensee. Licensee shall make no copies of the Documentation and
Software except one (1) copy of the Software may be made for backup or
archival purposes. Any such copy shall be clearly marked as proprietary to
Licensee and contain Licensor's proprietary notices. Additional copies of
Documentation will be made available to Licensee by Licensor at an
additional charge.
2.8. TRANSFER. Licensee may transfer the Software and Documentation to a
different Designated Location upon written approval by Licensor. Such
transfer shall obligate License to pay a transfer fee of Six Hundred
Dollars ($600.00) to Licensor. Upon transfer, the new physical location
shall become Designated Location for the purposes of this Agreement.
Notwithstanding the foregoing, Licensee understands and agrees that
Licensor's approval may be contingent upon agreement of the parties to
different or additional terms and that Licensor may, at its sole
discretion, terminate or modify any services or maintenance and support
agreements executed in connection herewith. Notwithstanding the foregoing,
Licensee understands and agrees that Third Party Products if any may not
be transferred without the consent of the applicable third party vendors.
2.9. LOGO. Licensee shall maintain on its Auction Home Page the "Powered
by OpenSite Auction" logo as provided by Licensor.
3. INSTALLATION; MAINTENANCE AND SUPPORT.
3.1. DELIVERY. Licensor shall deliver the Software and Documentation to
Licensee at the Designated Location; provided, however, that all
modification of the Software and any Updates and Enhancements shall be
conducted pursuant to a service agreement and shall be priced separately.
3.2. ENHANCEMENTS AND UPDATES. Licensor shall provide Enhancements and
Updates to Licensee at no charge so long as a maintenance and support
agreement between the parties is in effect and Licensee has paid the fees
due thereunder. Upon delivery to Licensee, such Enhancements and Updates
shall be subject to the terms and conditions of this Agreement and shall
be deemed incorporated into and made part of the Software.
4.OWNERSHIP. Except as otherwise expressly agreed in writing, as between
Licensor and Licensee, Licensor shall have exclusive ownership of all Licensed
Materials and all Derivative Works and written, electronic, or recorded
products, data, reports, or other materials resulting from performance of
additional services that affect the Licensed Materials or Derivative Works and
all other intellectual property rights, including copyrights, trademarks,
service marks, and trade secrets attributable to the foregoing (collectively
"Intellectual Property"); provided however, that the Intellectual Property shall
not include proprietary data of Licensee. Licensee shall have no ownership or
proprietary right in the Intellectual Property and shall not use the
Intellectual Property for any purpose not approved
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in writing by Licensor.
5. PAYMENTS.
5.1. LICENSE FEES. In consideration of the license granted under this
Agreement, Licensee shall pay a License Fee as described on Exhibit A.
Unless otherwise provided in Exhibit A. License Fees charged hereunder
shall be due and payable in advance of shipment of the Licensed Materials
to Licensee. Amounts unpaid when due shall be subject to a late charge of
one and one half percent (1.5%) per month or the maximum rate allowed by
law, whichever is less.
5.2. TAXES. Licensee agrees to pay all present or future sales, excise,
import, use, value-added or other similar taxes or duties (not including
taxes or duties on the income of Licensor) levied or based on payments
made pursuant to this Agreement.
6. TERMINATION.
6.1. TERMINATION FOR DEFAULT. By giving written notice, either party may
terminate this Agreement upon the occurrence of one or more of the
following events, which shall constitute a non-exclusive Event of Default
under this Agreement:
6.1.1. Either party fails to perform any material covenant,
agreement, obligation, term or condition contained herein;
6.1.2. Either party fails to comply with the provisions of the
confidentiality agreement executed by and between the parties
hereto;
6.1.3. Either party attempts to assign, terminate or cancel this
Agreement contrary to the terms thereof;
6.1.4. Licensee fails to make payment as provided herein;
6.1.5. Either party ceases to do business as a going concern, makes
an assignment for the benefit of creditors, admits in writing its
inability to pay debts as they become due, files a petition in
bankruptcy (except in connection with a reorganization under which
the business of such party is continued and performance of all its
obligations under this Agreement shall continue) or appoints a
receiver, acquiesces in the appointment of a receiver or trustee, or
liquidator for it or any substantial party of its assets or
properties.
6.2. EVENTS OF DEFAULT by either party shall not be cause for termination
if the defaulting party cures such default (if the default is susceptible
to cure) within thirty (30) days of receipt of written notice of default
from the other party.
6.3. RIGHTS UPON TERMINATION. Upon an uncured Event of Default, the
non-breaching party may, except as limited by this Agreement, seek all
legal and equitable remedies to which it is entitled. The remedies set
forth herein shall be deemed cumulative and not exclusive and may be
exercised by the non-breaching party, successively or concurrently, in
addition to any other remedies available to it. Upon termination by
Licensor for Licensee's default, all amounts under this Agreement shall
become immediately due and payable.
6.4. DUTIES UPON TERMINATION. Upon termination of this Agreement, each
party shall return to the other any confidential information in its
possession belonging to such other party.
7.RELATIONSHIP OF THE PARTIES. The relationship of the parties established by
this Agreement is solely that of independent contractors, and nothing contained
in this Agreement shall be construed to (a) give any party the power to direct
and control the day-to-day activities of the other; or (b) constitute such
parties as partners, joint ventures, co-owners or otherwise as participants in a
joint or common undertaking; or (c) make either party an agent of the other for
any purpose whatsoever. Neither party nor its agents or employees is the
representative of the other for any purpose, and neither has power or authority
to act as agent, employee to represent, to act for, bind, or otherwise create or
assume any obligation on behalf of the other.
8. WARRANTY.
8.1. LIMITED WARRANTY. Licensor warrants that for a period of three (3)
months from delivery the Software shall operate without Defects. THIS
LIMITED EXPRESS WARRANTY SPECIFIED ABOVE IS THE ONLY WARRANTY MADE BY
LICENSOR AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY
OPERATION OF LAW OR OTHERWISE, INCLUDING WARRANTIES OR MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
8.2. NEGATION OF WARRANTY. The above warranty shall be negated by (a) the
use of the Software by any user not a permitted user, (b) Licensee's use
of the Software in a manner not permitted by this Agreement, (c)
Licensee's unauthorized use of the Software in conjunction with third
party software not expressly approved by Licensor, or (e) installation or
use of the Software in an environment other than the Designated Operating
Environment.
8.3. REMEDIES. Remedies for the breach of warranty obligations hereunder
shall be limited to replacement or repair of such non-conforming Software.
THE FOREGOING SHALL BE LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR ANY
MALFUNCTION OR DEFECT IN THE SOFTWARE. IF SUCH MALFUNCTIONS OR DEFECT
MATERIALLY IMPAIRS LICENSEE'S USE OF THE SOFTWARE AND CANNOT BE CURED AS
PROVIDED IN THIS SECTION, THEN LICENSEE'S ALTERNATIVE AND EXCLUSIVE REMEDY
SHALL BE TO TERMINATE THIS AGREEMENT WITHOUT FURTHER LIABILITY TO LICENSOR
OR DAMAGES HEREUNDER. THIS WARRANTY IS NON-TRANSFERABLE.
8.4. LIMITATION OF LIABILITY. Subject to Section 8.2, Licensor's liability
on any claim of damages arising out of this Agreement shall be limited to
direct damages and shall not exceed the amounts paid by Licensee to
Licensor under this Agreement. In no event shall Licensor be liable for
indirect, exemplary, incidental, special or consequential damages arising
from this Agreement, even if Licensor has been advised of the possibility
or likelihood of such damages. The limitations of liability set forth
herein do not apply to any legal or equitable obligation that Licensor has
or may have to indemnify Licensee for any reason.
9. INDEMNIFICATION.
9.1. BY LICENSOR. Licensor shall indemnify, defend and hold harmless
Licensee against any loss, damage or expense incurred by Licensee as a
result of claims, actions, or proceedings brought by any third party
alleging infringement by the Software and Documentation, Updates, and
Enhancements relating thereto of copyright, trademark, patent, or other
proprietary rights, and against its reasonable attorneys' fees and any
money damages or costs awarded in respect of any such claim(s) and any
suit raising any such claim(s); provided, however, that (a) Licensee shall
have given Licensor prompt written notice of any such claim, demand, suit
or action; (b) Licensee shall cooperate with said defense by complying
with Licensor's reasonable instructions and requests to Licensee in
connection with said defense; and (c) Licensor shall have control of the
defense of such claim, suit, demand, or action and the settlement or
compromise thereof. Further, Licensor shall have no liability for any
infringement action or claim that is based upon or arising from the
matters described in Section 9.2. If a temporary or permanent injunction
is obtained against Licensee's use of the Software as a result of the
matters described in this section, Licensor shall, at its option and
expense, either procure for Licensee the right to continue using the
Software or replace or modify the Software or infringing portion thereof
so that it no longer infringes the alleged proprietary right. This Section
9.1 sets forth the exclusive remedy of Licensee against Licensor with
respect to any action or claim described herein. Licensor shall not
indemnify Licensee for uses, damages or expenses incurred by Licensee as a
result of claims, actions or proceedings brought by any third party based
on code or design specifications provided to Licensor by Licensee.
9.2. BY LICENSEE. Licensee shall indemnify, defend and hold harmless
Licensor against any loss, damage or expense incurred by Licensor as a
result of claims, actions, or proceedings brought by any third party
arising from (a) Licensee's use of the Software other than the Designated
Operating Environment or in a manner not permitted by this Agreement, (b)
Licensee's unauthorized use of the Software in conjunction with third
party software not expressly approved by Licensor, (c) Licensee's
installation or use of the Software in an environment other than the
Designated operating Environment; (d) acts of negligence or willful
misconduct by any employees of Licensee relating to this Agreement; or (e)
code or design specifications provided by Licensee to Licensor in
connection with Licensor's performance of Development Work, Customization
or modification of Software. Licensee will indemnify Licensor against its
reasonable attorneys' fees and any money damages or costs awarded in
respect of any such claim(s) and any suit raising any such claim(s).
10. GOVERNING LAW. As an incentive to alternative dispute resolution the parties
have agreed concerning disputes arising hereunder: (1) Licensor may only
commence legal proceedings against Licensee in a state or federal court sitting
in (insert Licensee's county here)_County_(insert Licensee's state here), in
which event, this License agreement will be construed under the internal laws of
the State of (insert Licensee's state here) and (2) Licensee may only commence
legal proceedings against Licensor in state or federal court sitting in North
Carolina, in which event, this License Agreement will be construed under the
internal laws of the State of North Carolina; provided that once litigation is
initiated by one of the parties, the parties, the other may assert counterclaims
in those proceedings.
11. MISCELLANEOUS.
11.1. BINDING NATURE AND ASSIGNMENT. This Agreement shall bind the parties
and their successors and permitted assigns. Neither party may assign this
Agreement without the prior written consent of the other except that with
respect to Licensor the term "assignment" shall not include any transfer
by merger, acquisition, stock transfer or other consolidation of Licensor
with another entity. Any other assignment attempted without the written
consent of the other party shall be void.
11.2. NOTICES. Any notice, consent or other communication in connection
with the Agreement shall be in writing and may be delivered in person, by
mail or by
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facsimile copy. If hand delivered, the notice shall be effective upon
delivery. If by facsimile copy, the notice shall be effective when sent.
If served by mail, the notice shall be effective three (3) business days
after being deposited with the United States Postal Service by certified
mail, return receipt requested, addressed appropriately to the intended
recipient, as follows:
If to Licensor: ATTN: OpenSite Technologies, Inc.
XX Xxx 00000
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000-0000
If to Licensee: ATTN:
Each party may change its address for notification purposes by giving the
other party written notice of the new address and the date upon which it
shall become effective.
11.3. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one single
agreement between the parties.
11.4. HEADINGS. The articles and sections headings and the table of
contents are for reference and convenience only and shall not be
considered in the interpretation of this Agreement.
11.5. APPROVALS AND SIMILAR ACTIONS. Where agreement, approval,
acceptance, consent or similar action by either party is required by any
provision of this Agreement, such action shall not be unreasonably delayed
or withheld, unless specifically permitted by this Agreement.
11.6. PUBLICITY. Licensor may prepare press releases concerning the
existence of this Agreement and may reference Licensee and this Agreement
in its advertising, sales promotions, trade shows, or other marketing
material.
11.7. FORCE MAJEURE. Neither party shall be liable to the other by reason
of any failure of performance hereunder (except failure to pay) if such
failure arises out of causes beyond such party's reasonable control,
despite the reasonable efforts and without the fault or negligence of such
party. Any party experiencing such an event shall give as prompt notice as
possible under the circumstances.
11.8. SEVERABILITY. If any provision of this Agreement is held to be
unenforceable, then both parties shall be relieved of all obligations
arising under such provision, but only to the extent that such provision
is unenforceable, and this Agreement shall be deemed amended by modifying
such provision to the extent necessary to make it enforceable while
preserving its intent or, if that is not possible, by substituting another
provision that is enforceable and achieves the same objective and economic
result. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH PROVISION OF THIS
AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF
WARRANTIES, INDEMNIFICATION OR EXCLUSION OF DAMAGES OR OTHER REMEDIES IS
INTENDED TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND
AGREED THAT IN THE EVENT ANY REMEDY UNDER THIS AGREEMENT IS DETERMINED TO
HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND
EXCLUSIONS OF DAMAGES OR OTHER REMEDIES SHALL REMAIN IN EFFECT.
11.9. WAIVER. No delay or omission by either party to exercise any right
or power it has under this Agreement shall impair or be construed as a
waiver of such right or power. A waiver by either party of any covenant or
breach shall not be construed to be a waiver of any succeeding breach or
of any other covenant. All waivers must be in writing and signed by the
party waiving its rights.
11.10. ATTORNEYS' 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 be entitled to
recover reasonable attorneys' fees and other costs incurred in that action
or proceeding, in addition to any other relief to which it may be
entitled.
11.11. NO THIRD PARTY BENEFICIARIES. The parties agree that this Agreement
is for the benefit of the parties hereto and is not intended to confer any
legal rights or benefits on any third party and that there are no third
party beneficiaries to this Agreement or any part or specific provision of
this Agreement.
11.12. COMPLIANCE WITH LAWS. Each party shall comply with all
governmental, including federal, state, and local laws, statutes, rules
and regulations applicable to this Agreement and in the conduct of its
business. Failure to comply with this provision shall constitute a
material default under this Agreement entitling the non-breaching party to
terminate this Agreement.
11.13. ENTIRE AGREEMENT. This Agreement, including all of its attachments,
each of which is incorporated into this Agreement, is the entire agreement
between the parties with respect to its subject matter, and there are no
other representations, understandings or agreements between the parties
relative to such subject matter. No amendment to, or change, waiver or
discharge of any provision of this Agreement shall be valid unless in
writing and signed by any authorized representative of the party against
which such amendment, change, waiver or discharge is sought to be
enforced. 11.14. SURVIVAL OF PROVISIONS. Provisions 4, 6.2, 6.3, 8.3, 8.4,
9, 10, 11.6, and 11.10 and all accrued and unpaid obligations arising
hereunder shall survive the termination hereof.
ACKNOWLEDGED AND AGREED TO, as of the day and year first written above.
LICENSEE
By:___________________________________
Printed Name:_________________________
Title:________________________________
Date:_________________________________
LICENSOR
By:___________________________________
Printed Name:_________________________
Title: _______________________________
Date:_________________________________
