THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is made and entered into on the date of acquirement (the "Effective Date") by and between Mix Software, Inc. ("Mix Software"), a Texas corporation, and the acquirer ("Licensee").
A. Mix Software is the owner of, or has acquired rights to, the Software and Documentation (as defined below).
B. Mix Software desires to grant to Licensee and Licensee desires to obtain from Mix Software a nonexclusive license to use the Software and Documentation solely in accordance with the terms and on the conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1.1 "Designated Equipment" shall mean the hardware products identified on Exhibit "A" with which the Software is licensed for use.
1.2 "Documentation" shall mean all manuals, user documentation, and other related materials pertaining to the Software which are furnished to Licensee by Mix Software in connection with the Software.
1.3 "License Fee" shall mean the amount paid for each license to use the Software and Documentation.
1.4 "Software" shall mean the computer programs in machine readable form listed in Exhibit "A" attached hereto and any subsequent error corrections or updates supplied to Licensee by Mix Software pursuant to this Agreement. Exhibit "A" may be amended from time to time by the parties in writing.
2. GRANT OF RIGHTS.
The License granted for Software under this Agreement authorizes Licensee on a nonexclusive basis to use the Software on the Designated Equipment identified on Schedule A hereto for the license term set forth on Schedule A.
The Licensee may use the Software to produce and distribute applications in executable form only, with no royalty obligation to Mix Software, so long as the applications produced do not compete with the Software as a development tool.
3.1 Software. Mix Software shall deliver to Licensee a master copy of the Software licensed hereunder, suitable for reproduction, in electronic files only.
3.2 Documentation. Mix Software shall deliver copies of Documentation.
4.1 Error Corrections and Updates. Mix Software will provide Licensee with error corrections, bug fixes, patches or other updates to the Software licensed hereunder to the extent available in accordance with Mix Software's release schedule for a period of three months from the date of shipment. After the three month period, any subsequent updates may be purchased from Mix Software at an update price determined at the time of release.
4.2 Other Modifications. Licensee may, from time to time, request that Mix Software incorporate certain features, enhancements or modifications into the Software. Mix Software may, in its sole discretion, undertake to incorporate such changes and distribute the Software so modified to all or any of Mix Software's licensees. Licensee may also incorporate its own modifications to the Software if needed.
4.3 Title to Modifications. All such error corrections, bug fixes, patches, updates or other modifications shall be the sole property of Mix Software.
5.1 Printed Matter. Except as specifically set forth herein, no Software or Documentation which is provided by Mix Software pursuant to this Agreement in human readable form, such as written or printed documents, shall be copied in whole or in part by Licensee without Mix Software's prior written agreement. Additional copies of printed materials may be obtained from Mix Software at the charges then in effect.
5.2 Machine Readable Matter. Except as specifically set forth herein, any Software provided in machine readable form may not be copied by Licensee in whole or in part, except for Licensee's backup or archive purposes. Licensee agrees to maintain appropriate records of the number and location of all copies of the Software and make such records available upon Mix Software's request. Licensee further agrees to reproduce all copyright and other proprietary notices on all copies of the Software in the same form and manner that such copyright and other proprietary notices are originally included on the Software.
6. LICENSE FEES AND PAYMENT.
6.1 License Fee. In consideration of the license rights granted in Article 2 above, Licensee shall pay the License Fees or other consideration for the Software and Documentation as set forth on Exhibit "A" attached hereto. All amounts payable hereunder by Licensee shall be payable in United States funds without deductions for taxes, assessments, fees, or charges of any kind. Checks shall be made payable to Mix Software and shall be forwarded to the Office at Mix Software as follows: Mix Software, 1203 Berkeley Dr, Richardson, TX 75081-5932.
6.2 Taxes and Other Charges. Licensee shall be responsible for paying all (i) sales, use, excise, value-added, or other tax or governmental charges imposed on the licensing or use of the Software or Documentation hereunder, (ii) freight, insurance and installation charges, and (iii) import or export duties or like charges.
7. PROTECTION OF SOFTWARE.
7.1 Proprietary Notices. Licensee agrees to respect and not to remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on any of the Software or output generated by the Software, and to reproduce and include same on each copy of the Software.
7.2 Ownership. Licensee further acknowledges that all copies of the Software in any form provided by Mix Software or made by Licensee are the sole property of Mix Software and/or its suppliers. Licensee shall not have any right, title, or interest to any such Software or copies thereof except as provided in this Agreement, and further shall secure and protect all Software and Documentation consistent with maintenance of Mix Software's proprietary rights therein.
8. WARRANTIES; SUPERIOR RIGHTS.
8.1 Ownership. Mix Software represents its belief that it is the owner of the entire right, title, and interest in and to Software, and that it has the sole right to grant licenses thereunder, and that it has not knowingly granted licenses thereunder to any other entity that would restrict rights granted hereunder except as stated herein.
8.2 Limited Warranty. Mix Software represents and warrants to Licensee that the Software, when properly installed by Licensee and used with the Designated Equipment, will perform substantially as described in Mix Software's then current Documentation for such Software for a period of ninety (90) days from the date of shipment.
8.3 Limitations. Mix Software's obligations with respect to such warranties shall be contingent on Licensee's use of the Software in accordance with this Agreement and in accordance with Mix Software's instructions as provided by Mix Software in the Documentation, as such instructions may be amended, supplemented, or modified by Mix Software from time to time. Mix Software shall have no warranty obligations with respect to any failures of the Software which are the result of accident, abuse, misapplication, extreme power surge or extreme electromagnetic field.
8.4 Licensee's Sole Remedy. Mix Software's entire liability and Licensee's exclusive remedy shall be, at Mix Software's option, either (a) return of the price paid or (b) repair or replacement of the Software upon its return to Mix Software; provided Mix Software receives written notice from Licensee during the warranty period of a breach of warranty. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
8.5 Disclaimer of Warranties. MIX SOFTWARE DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 8.2 ABOVE ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED BY MIX SOFTWARE. THERE ARE NO OTHER WARRANTIES RESPECTING THE SOFTWARE AND DOCUMENTATION OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF MIX SOFTWARE HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF MIX SOFTWARE IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF MIX SOFTWARE AS SET FORTH HEREIN.
8.6 Limitation of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH MIX SOFTWARE IS CHARGING HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY MIX SOFTWARE OF THE RISK OF LICENSEE'S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH LICENSEE'S USE OF THE SOFTWARE AND DOCUMENTATION. ACCORDINGLY, LICENSEE AGREES THAT MIX SOFTWARE SHALL NOT BE RESPONSIBLE TO LICENSEE FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE LICENSING OR USE OF THE SOFTWARE OR DOCUMENTATION. Any provision herein to the contrary notwithstanding, the maximum liability of Mix Software to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of any Software delivered to Licensee hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual price paid to Mix Software by Licensee for the Software whose license, use, or other employment gives rise to the liability. The essential purpose of this provision is to limit the potential liability of Mix Software arising out of this Agreement. The parties acknowledge that the limitations set forth in this Article 8 are integral to the amount of consideration levied in connection with the license of the Software and Documentation and any services rendered hereunder and that, were Mix Software to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.
9.1 Mix Software shall indemnify, hold harmless and defend Licensee against any action brought against Licensee to the extent that such action is based on a claim that the unmodified Software, when used in accordance with this Agreement, infringes a United States copyright and Mix Software shall pay all costs, settlements and damages finally awarded; provided, that Licensee promptly notifies Institution in writing of any claim, gives Mix Software sole control of the defense and settlement thereof and provides all reasonable assistance in connection therewith. If any Software is finally adjudged to so infringe, or in Mix Software's opinion is likely to become the subject of such a claim, Mix Software shall, at its option, either: (i) procure for Licensee the right to continue using the Software (ii) modify or replace the Software to make it non-infringing, or (iii) refund the fee paid, less reasonable depreciation, upon return of the Software. Mix Software shall have no liability regarding any claim arising out of: (a) use of other than a current, unaltered release of the Software unless the infringing portion is also in the then current, unaltered release, (b) use of the Software in combination with non-Mix Software software, data or equipment if the infringement was caused by such use or combination, (c) any modification or derivation of the Software not specifically authorized in writing by Mix Software or (d) use of third party software. THE FOREGOING STATES THE ENTIRE LIABILITY OF MIX SOFTWARE AND THE EXCLUSIVE REMEDY FOR LICENSEE RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY COPYRIGHT OR OTHER PROPRIETARY RIGHT BY THE SOFTWARE.
9.2 Except for the foregoing infringement claims, Licensee shall indemnify and hold harmless Mix Software, their officers, agents and employees from and against any claims, demands, or causes of action whatsoever, including without limitation those arising on account of Licensee's modification or enhancement of the Software or otherwise caused by, or arising out of, or resulting from, the exercise or practice of the license granted hereunder by Licensee, its sub-licensees, if any, its subsidiaries or their officers, employees, agents or representatives.
10. DEFAULT AND TERMINATION.
10.1 Events of Default. This Agreement may be terminated by the non-defaulting party if any of the following events of default occur: (1) if a party materially fails to perform or comply with this Agreement or any provision hereof; (2) if either party makes an assignment in violation of Section 12 (Nonassignability); (3) if a party becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (4) if a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by a party; or (5) if such a petition is filed by any third party, or an application for a receiver is made by anyone and such petition or application is not resolved favorably within ninety (90) days.
10.2 Effective Date of Termination. Termination due to a material breach of Articles 2 (Grant of Rights), 5 (Copies), or 7 (Protection of Software) shall be effective on notice. In all other cases, termination shall be effective thirty (30) days after notice of termination to the defaulting party if the defaults have not been cured within such thirty (30) day period.
10.3 Obligations on Termination. Within ten (10) days after termination of this Agreement, Licensee shall cease and desist all use of the Software and Documentation and shall return to Mix Software all full or partial copies of the Software and Documentation in Licensee's possession or under its control.
11. NOTICES. All notices, authorizations, and requests in connection with this Agreement shall be deemed given (i) five days after being deposited in the U.S. mail, postage prepaid, certified or registered, return receipt requested; or (ii) one day after being sent by overnight courier, charges prepaid, with a confirming fax; and addressed as first set forth above or to such other address as the party to receive the notice or request so designates by written notice to the other.
12. NONASSIGNABILITY. Licensee shall not assign this Agreement or its rights hereunder without the prior written consent of Mix Software.
13. GOVERNING LAW; JURISDICTION AND VENUE. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Texas. The Texas state courts of Dallas County, Texas (or, if there is exclusive federal jurisdiction, the United States District Court for the District of Texas) shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement, and Licensee hereby consents to the jurisdiction of such courts.
14. GOVERNMENT CONTRACTS. If the Software or Documentation to be furnished hereunder are to be used in the performance of a government contract or subcontract, the software shall be provided on a "restricted rights" basis only and Licensee shall place a legend, in addition to applicable copyright notices, in the form provided under the governmental regulations. Mix Software shall not be subject to any flowdown provisions required by the governmental customer unless agreed to by Mix Software in writing.
15. SEVERABILITY. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
16. MISCELLANEOUS. This Agreement and its exhibits contain the entire understanding and agreement between the parties respecting the subject matter hereof. This Agreement may not be supplemented, modified, amended, released or discharged except by an instrument in writing signed by each party's duly authorized representative. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind.
The Software and Documentation entitled “C/Database Toolchest” consists of object code, source code, and printed documentation designed as a tool set for the development of applications that perform database management operations.
For each license purchased, Licensee may assign a single individual to use the Software and Documentation on either the Licensee’s computer or the individual’s computer. At no time shall a single licensed copy of the Software or Documentation be used by more than one individual.
The License Fee for each copy of the Software and Documentation is $49.95USD.
The term of the license is perpetuity except as defined in section 10, DEFAULT AND TERMINATION.