License Agreement for
Qwest Xxxxx.Xxxxxxxxx LLC
The terms and conditions of this licensing agreement are
confidential between XXXx.xxx and Qwest Xxxxx.Xxxxxxxxx
1. LICENSE GRANT. . XXXx.xxx, Inc., a Colorado corporation
("XXXx.xxx"), hereby grants Qwest Xxxxx.Xxxxxxxxx LLC
("Licensee") a non-exclusive, worldwide, irrevocable and non-
transferable license to reproduce and use for business purposes
the executable code version of XXXXXXx.xxx (including upgrades,
enhancements, patches, bug fixes and related documentation)
(collectively Product"), provided any copy must contain all of
the original proprietary notices. Except for Licensee's
subcontractors, Licensee may not redistribute the Product to any
third party unless Licensee has separately entered into a
distribution agreement with XXXx.xxx.
2. RESTRICTIONS. Except as otherwise expressly permitted in this
Agreement, or in another XXXx.xxx agreement to which Licensee is
a party, Licensee may not: (i) modify or create any derivative
works of the Product or documentation, including translation or
localization; (ii) decompile, disassemble, reverse engineer, or
otherwise attempt to derive the source code for the Product
(except to the extent applicable laws specifically prohibit such
restriction); (iii) redistribute, encumber, sell, rent, lease,
sublicense, or otherwise transfer rights to the Product; (iv)
remove or alter any trademark, logo, copyright or other
proprietary notices, legends, symbols or labels in the Product;
or (v) publish any results of benchmark tests run on the Product
to a third party without XXXx.xxx's prior written consent.
3. TERMS. The terms and pricing for the Product, development and
integration are described in the Production Agreement and the
Statement of Work provided to Licensee by BVP Media.
4. SOURCE CODE. A copy of the source code will be escrowed to
allow the licensee to make modifications to the Product in the
event that the owner of the Product is not capable of providing
ongoing support.
5. LIMITED WARRANTY. XXXx.xxx does not warrant that the
functions contained in the programs will be uninterrupted or
error free, however XXXx.xxx will use commercially reasonable
efforts to correct an defect or error within a reasonable time.
XXXx.xxx's entire liability and Licensee's exclusive remedy for
failure to correct any such defect or error shall be return the
subscription fees paid by Licensee under this Agreement. EXCEPT
FOR THE WARRANTIES EXPRESSLY AND SPECIFICALLY DESCRIBED IN
PARAGRAPH 5, THERE ARE NO WARRANTIES EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, AND
ALL SUCH WARRANTIES ARE EXPRESSLY AND SPECIFICALLY DISCLAIMED.
6. LIABILITY. Licensee agrees that regardless of the form of any
claim, XXXX.xxx's liability for any damages to Licensee or to any
other party shall not exceed the amount Licensee of the
subscription fees IN NO EVENT UNDER ANY THEORY OF LAW, INCLUDING
BUT NOT LIMITED TO, BREACH OF WARRANTY, NEGLIGENCE, OR OTHER
TORT, SHALL EITHER PARTY, THEIR AGENTS NOR SUPPLIERS, BE
RESPONSIBLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OR LOST PROFITS, EVEN IF THE PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. U.S. GOVERNMENT RESTRICTED RIGHTS. Access to the KEWi
Software is provided with RESTRICTED RIGHTS. Use, duplication,
or disclosure by the Government is subject to restrictions as set
forth in paragraph (c)(1)(ii) of the Rights in Technical Data and
Computer Software Clause at 52.227-7013 for DOD contracts, and at
FAR (48 CFR 52.227-19 C(1) and (2)) for civilian agency contracts
or other comparable agency clause.
8. GOVERNING LAW AND VENUE. This Agreement shall be governed by
and construed in accordance with the laws of Colorado and the
United States, including patent and copyright laws, without
reference to the 1980 United Nations Convention on Contracts for
the International Sales of Goods. No conflict of law provisions
shall invoke so as to use the laws of any other jurisdiction.
The exclusive venue for all cases related to or arising out of
this Agreement shall be the federal and state courts in the State
of Colorado except that, at the option of XXXX.xxx, an injunction
proceeding may be brought in the state where Licensee resides.
If any of the provisions, or portions thereof, of the Agreement
are invalid or unenforceable under any applicable statute or rule
of law, the court shall reform the contract to the minimum extent
necessary to be valid and enforceable ; all other terms shall
remain unchanged.
9. WHOLE AGREEMENT. This Agreement constitutes the entire
agreement between Licensee and XXXx.xxx and all additions,
amendments or modifications of this Agreement are binding upon
the parties, only if same is in writing and duly executed by
Licensee and XXXX.xxx. Applicable specifications or terms from
Licensee's Purchase Order are binding to XXXX.xxx only if they
are specifically incorporated by reference into this document
after the "Terms" heading. If any documents are incorporated
herein, in the event of any conflicts between the terms of this
Agreement and those appearing on the face of such incorporated
document, the terms and conditions of this Agreement shall
prevail. The waiver or failure of XXXx.xxx to exercise in any
respect any right provided for in this Agreement shall not be
deemed a waiver of any further or future right of this Agreement.
10. TERM AND TERMINATION. XXXx.xxx shall have the right to
terminate this agreement upon 60 days notice to Licensee if
Licensee breaches any term or condition hereof, and such breach
is not cured within 60 days. In the event that Licensee either
(a) fails to make timely required payments to XXXx.xxx, if
applicable; or (b) breaches the Agreement, Licensee agrees that
Licensee will discontinue the use of the Product. This license
agreement will automatically renew with receipt of the monthly
subscription fees for the Product from Licensee. XXXx.xxx
reserves the right to change the subscription fee for access to
the Product upon 30 day written notice after the initial term of
this license agreement is complete, but any such change will be
effective throughout such renewal term.
11. MAINTENANCE AND SUPPORT. Support will be provided via the
internet using the Product. Telephone support service is
currently available Monday through Friday 8:00 a.m. to 5:00 p.m.
MT; hours and days of service are subject to change at any time
upon thirty (30) days written notice to Licensee. All other
maintenance and support services, including but not limited to
on-site assistance, custom programming, custom designed reports
and forms, and provision of otherwise included services that are
beyond "reasonable," may be furnished by XXXx.xxx subject to
XXXx.xxx staff availability, and at XXXx.xxx's then-current rate
and costs. XXXx.xxx will answer Licensee's specific questions;
on a best-efforts basis. Although XXXx.xxx will attempt to
provide some guidance and direction, XXXx.xxx is not responsible
for resolving issues related to networks, operating systems,
back-end data bases, or hardware.
12. ASSIGNMENT. Licensee may assign its rights and obligations
under this Agreement in connection with the sale of all or
substantially all of its assets.
13. INDEMNIFICATION. XXXx.xxx will indemnify, defend and hold
harmless Licensee, its agents, officers, consultants, employees
and subcontractors from any all claims, demands, causes of
action, damages, costs, expenses, penalties, losses, liabilities,
fines, penalties and forfeitures (including investigation costs,
reasonable attorneys fees, including the fully-burdened cost of
in-house counsel, and third party fees) arising from the
infringement or violation by the Product of any patent,
copyright, trade secrets, know-how or other intellectual property
rights of any third party. Licensee will have final approval of
any settlement requiring payment from Licensee or reducing
Licensee's rights to use any property which forms the subject
matter of the claim, action or proceeding.
I acknowledge that I have read and agree to all the terms and
conditions of the XXXx.xxx License Agreement as set forth in this
document.
/s/ Xxxxxx Xxxxxxx
Authorized Signature
Xxxxxx Xxxxxxx, Vice President May 22, 2000
Print Name and Title
Date
Effective Date: July 1, 2000
