How To License A Software Package

Transcription

1 LICENSE AGREEMENT This LICENSE AGREEMENT (this Agreement ), effective as of the date below written, is by and between PanTech Design LLC., a Texas limited liability company ( Licensor ), and ( Licensee ). WHEREAS, Licensor owns and operates a business which relates to the programming of automation and other systems (the Business ); and WHEREAS, as part of the Business, Licensor has developed, manufactured, licensed and/or created certain designs, documents, original graphics, source code and related modules (the Software Package ); and WHEREAS, Licensor and Licensee have entered into a contractual relationship (the Relationship ) whereby Licensee will install automation and other systems which will employ the Software Package at one certain physical location, namely, (the Location ); and WHEREAS, in furtherance of the Relationship, Licensee desires to obtain from Licensor a license to the Software Package for use at the Location; Now, therefore, for good and adequate consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. License. The Licensor hereby grants to the Licensee a perpetual, nonexclusive, royaltyfree license to a single copy and a single use of the Software Package solely in connection with the Relationship for use at the Location and subject to the terms and restrictions set forth in this Agreement. The license granted hereunder to use the Software Package is limited to use only at the Location. The license grants the Licensee the right to modify the Software Package or subparts thereof as may be necessary or desirable for the installation or use of the Software Package at the Location, and the License grants the Licensee the right, within the Licensee s sole discretion, to disclose that portion of the Software Package known as the source code (the Source Code ) to the lawful owner of the Location (the Owner ) or another person or company the Licensee chooses in accord with Section 4 below. 2. Limitations on License. Notwithstanding the license granted above, (a) the Licensee shall not have the right to use the Software Package, or any subpart thereof, for any location other than the Location; (b) the Licensee shall not have the right to create derivative works, re-use the Software Package in any way, or release the Software Package or any subpart thereof to anyone other than the Owner; (c) the Licensee shall not have the right to circumvent, or make any efforts thereto, any encryption, password protection, or security features placed within the Software Package or any subpart thereof; (d) the Licensee shall not have the right to view or make any alterations or modifications to that portion of the Software Package known as the modules, and (e) this Agreement does not grant the Licensee any rights to patents, copyrights, trade secrets, trademarks or any other rights in respect to the Software Package or any subpart thereof. 3. Assignment. The Licensee may not transfer or assign this Agreement or the Licensee s rights under this Agreement to any other party. 4. Disclosure or Transfer. If the Licensee chooses to disclose the Source Code to the Owner, person or company as allowed by the license granted above, the Licensee must provide the attachment designated as an exhibit to this Agreement, such exhibit being a Disclosure and Sub-License Agreement

2 between the Licensee and the Owner (the Owner Agreement ). The Owner Agreement must be executed by the Licensee and the Owner, and a copy thereof provided to the Licensor, before the Licensee may disclose the Source Code to such Owner, person or company. The Licensee is solely responsible for any unauthorized use, misuse, abuse, disclosure and resulting damages arising from any such disclosure. 5. Trade Secrets; Title. The Licensee acknowledges and agrees that the Software Package constitutes valuable property and trade secrets of the Licensor and that all title and ownership rights in the Software Package and related materials remain exclusively with the Licensor and its licensors. The Licensor reserves all rights with respect to the Software Package under all applicable laws for the protection of proprietary information, including, without limitation, trade secrets, copyrights, trademarks and patents. Except as otherwise provided in this Agreement, the Licensee shall not cause or permit unauthorized copying, reproduction, disclosure or use of any portion of the Software Package or supporting documentation, or the delivery or distribution of any part thereof, to any third person or entity, for any purpose whatsoever, without the prior written consent of the Licensor. 6. Limitation of Warranties. TO THE FULL EXTENT ALLOWED BY LAW, THE LICENSOR DISCLAIMS ALL WARRANTIES, TERMS, OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES, TERMS, OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OF NON-INFRINGEMENT, AND SATISFACTORY QUALITY IN REGARD TO THE SOFTWARE PACKAGE. THE LICENSEE IS ACCEPTING THE SOFTWARE PACKAGE AS IS, AND NO REPRESENTATION HAS BEEN MADE BY THE LICENSOR THAT THE SOFTWARE PACKAGE IS ERROR FREE. THE LICENSOR S TOTAL LIABILITY RELATING TO ANY CLAIMS RELATING TO THE SOFTWARE PACKAGE AND ITS USE WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY THE LICENSEE TO THE LICENSOR. THE LICENSOR NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE, OR USE OF THE SOFTWARE PACKAGE. IN NO EVENT WILL THE LICENSOR BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, EVEN IF THE LICENSOR HAS, OR SHOULD HAVE HAD, ANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, OF THE POSSIBILITY OF SUCH DAMAGES. 7. Limitation of Liability - THE LICENSEE ACKNOWLEDGES AND AGREES TO RELEASE AND DISCHARGE THE LICENSOR FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION OF ANY KIND OR NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, AND WHETHER SPECIFICALLY MENTIONED OR NOT, WHICH MAY EXIST OR MIGHT BE CLAIMED TO EXIST AT OR PRIOR TO THE DATE OF THIS AGREEMENT AND THE LICENSEE SPECIFICALLY WAIVES ANY CLAIM OR RIGHT TO ASSERT THAT ANY CAUSE OF ACTION OR ALLEGED CAUSE OF ACTION OR CLAIM OR DEMAND HAS BEEN, THROUGH OVERSIGHT OR ERROR OR INTENTIONALLY OR UNINTENTIONALLY, OMITTED FROM THIS RELEASE. 8. Choice of Law and Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE INTERNAL LAWS OF THE STATE OF TEXAS, USA, AS SUCH LAWS ARE APPLIED TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY IN TEXAS, USA, REGARDLESS OF THE DICTATES OF TEXAS CONFLICTS LAW. EXCLUSIVE VENUE FOR ANY ACTION ARISING UNDER THIS AGREEMENT SHALL LIE IN TARRANT COUNTY, TEXAS. 2

3 9. Severability. If any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired and a valid, legal and enforceable provision of similar intent and economic impact shall be substituted therefore. 10. No Waiver. The failure of any party at any time or times to require performance of any provision of this Agreement shall in no manner affect the right to enforce the same. No waiver by any party of any condition, or of the breach of any term, provision, covenant, representation or warranty contained in this Agreement shall be deemed to be a waiver of any subsequent breach of such condition, term, provision, covenant, representation or warranty. 11. Notices. All notices to be given hereunder shall be given in writing and delivered by United States mail, postage prepaid, return receipt requested at the address next to the respective party s signature below or to such other address of which either party shall notify the other in writing. The date any such notice was mailed shall be deemed the date the notice was given. 12. Entire Agreement; Amendment. This Agreement, together with exhibit one hereto, sets forth the entire understanding and agreement between the parties, supersedes all prior agreements, whether oral or written, with respect to the subject matters hereof, and may be amended only in a writing signed by both parties. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the day of, 20. Addresses: 1701 W. Northwest Hwy, Ste. 220 Grapevine, TX LICENSOR PANTECH DESIGN, LLC By: Troy Morgan, its manager LICENSEE:, (sign) (print) 3

4 EXHIBIT ONE [Attach Sub-License Agreement Here] 4

5 DISCLOSURE AND SUB-LICENSE AGREEMENT This DISCLOSURE AND SUB-LICENSE AGREEMENT (this Agreement ) effective as of the date written below is entered into by and between ( Sub-Licensor ) and ( Sub-Licensee ). WHEREAS, Sub-Licensor and Sub-Licensee have entered into a contractual arrangement (the Arrangement ) whereby Sub-Licensor shall install automation and other systems at a certain physical location owned by the Sub-Licensee, namely (the Location ); and WHEREAS, an integral part of these automation and other systems is a certain software package made up of certain designs, documents, original graphics, source code and related modules (the Software Package ) which the Sub-Licensor has gained access to through a license agreement (the License ) with PanTech Design, Ltd. (the Licensor ); and WHEREAS, Sub-Licensor desires to disclose that certain portion of the Software Package known as the source code (the Source Code ) to the Sub-Licensee by, through and under the License and pursuant to this Agreement; Now therefore, for good and adequate consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Sub-License. The Sub-Licensor hereby grants to the Sub-Licensee a perpetual, nonexclusive, royalty free sub-license to the Source Code by, through and pursuant to the License and solely in connection with the Arrangement. The sub-license granted hereunder includes the right to use the Source Code only at the Location. The sub-license grants the Sub-Licensee the right to modify the Source Code as may be necessary or desirable for the installation or use of the Software Package at the Location. 2. Limitations on License. Notwithstanding the sub-license granted above, the Sub- Licensee is bound by the restrictions and limitations and subject to the remedies included within the License, including but not limited to: (a) the Sub-Licensee is not given the right to use the Source Code for any location other than the Location; (b) the Sub-Licensee shall not have the right to create derivative works, re-use the Source Code in any way, (c) the Sub-Licensee shall not have the right to circumvent, or make any efforts thereto, any encryption, password protection, or security features placed within the Software Package or any subpart thereof; (d) the Sub-Licensee shall not have the right to view or make any alterations or modifications to that portion of the Software Package known as the modules, and (e) this Agreement does not grant the Sub-Licensee any rights to patents, copyrights, trade secrets, trademarks or any other rights in respect to the Source Code. 3. Third Party Beneficiary. Being that the Source Code continues to be the sole and separate property of the Licensor and that the Licensor retains all title and ownership rights thereto, the Sub-Licensor and Sub-Licensee hereby acknowledge and agree that the Licensor is a third party beneficiary of this Agreement and is entitled to independently bring any action, claim, or suit to enforce the terms and limitations of this Agreement. Notwithstanding the foregoing, Sub-Licensor and Sub- Licensee agree that Licensor shall have no liability in any respect in connection with this Agreement or Sub-Licensee s use of the Software Package. 1

6 IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the day of, 20. Addresses: SUB-LICENSOR: (company) (sign) (print) SUB-LICENSEE: (sign) (print) 2