The use of the Deliverables, as defined herein, is exclusively governed by the terms of this limited use license agreement (the “Agreement”), dated and effective as of the Effective Date set forth below, by and between Cambridge Executive Limited (“BlueCreation”), an English Limited company with its principal place of business at St John’s Innovation Centre, Cowley Road, Cambridge, CB40WS, England and LICENSEE. By downloading, installing or using the Deliverables, Licensee accepts the terms of this Agreement. If Licensee does not agree to all of the terms of this Agreement, then Licensee must not download, install or use the Deliverables. Licensee and BlueCreation are each a “party” and, collectively, are the “parties” to this Agreement. BY SELECTING THE “ACCEPT” OPTION BELOW, LICENSEE SHALL BE DEEMED TO HAVE ACCEPTED AND AGREED TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (“ACCEPTANCE”), AND THIS AGREEMENT SHALL BECOME EFFECTIVE UPON THE DATE OF SUCH ACCEPTANCE BY LICENSEE (THE “EFFECTIVE DATE”). FOR AVOIDANCE OF DOUBT, IT SHALL NOT BE A REQUIREMENT TO THE EFFECTIVENESS AND ENFORCEABILITY OF THIS AGREEMENT THAT BLUECREATION EXECUTE THIS AGREEMENT.
1. LIMITED LICENSE.
1.1 License Grant. Subject to Licensee's performance of the terms and conditions of this Agreement, BlueCreation hereby grants to Licensee during the term of this Agreement a non-transferable, non-exclusive, royalty free, world-wide, limited license to use and reproduce and, if required, modify the Deliverables to the extent that source code is provided for: (i) Licensee's internal evaluation in connection with development of Licensee's Product and/or Licensee's Software for use exclusively with BlueCreation's Products, and/or determination of whether or not to place volume purchase orders with BlueCreation for the purchase of BlueCreation's Products; (ii) incorporating the firmware into Licensee's Product and/or Licensee's Software for use exclusively with BlueCreation's Products; and (iii) distributing, and having distributed, the firmware solely as incorporated into Licensee's Product and/or Licensee's Software for use exclusively with BlueCreation's Products.
1.2 License Restrictions. In no event may Licensee (i) use the Deliverables and/or Modifications thereof in conjunction with any product other than Licensee’s Product and/or Licensee’s Software; (ii) distribute, license or sell the Deliverables and/or Modifications thereof as a stand-alone product; (iii) decrypt, disassemble, reverse assemble or reverse compile the Deliverables, except to the extent that such restrictions are prohibited by applicable law; (iv) distribute the source code of the Deliverables and/or Modifications thereof; (v) take any actions that would cause the Deliverables and/or any portion thereof to become subject to the GNU General Public License or any other open source license that imposes any limitation, restriction or condition on the right or ability to use or distribute the Deliverables and/or any portion thereof, (vi) disclose the results of any benchmarking of the Deliverables and/or any portion thereof (whether or not obtained with BlueCreation’s assistance) to third parties; (vii) use the Deliverables and/or any portion thereof to develop or enhance any product that competes with the BlueCreation Product; or (viii) employ the Deliverables and/or any portion thereof in, or in the development of, life critical applications or products or in any other application or product where failure of the Proprietary Deliverables and/or any portion thereof or any results from the use thereof can reasonably be expected to result in personal injury.
1.3 Other License Terms. The Deliverables are licensed, not sold, and are protected by copyright laws. All right, title and interest in and to the Deliverables and any copies thereof, regardless of form or media, shall remain solely with BlueCreation. Except as expressly provided herein, this Agreement does not grant Licensee any rights under any of BlueCreation’s patents, copyrights, trade secrets, trademarks or other Intellectual Property rights. BlueCreation and its third party licensors retain all rights not explicitly granted herein. Licensee agrees that each copy of Licensee’s Software distributed by Licensee will be accompanied by and subject to a software license, the terms and conditions of which shall be at least as protective of the Deliverables and Modifications as the terms and conditions Licensee uses for its own software products and the terms and conditions of this Agreement. Licensee expressly agrees not to distribute Licensee’s Software to any third party that has not accepted the terms of such Licensee software license.
1.4 Bug Fixes, Patches, Workarounds. Licensee agrees to provide BlueCreation with the annotated source code and relevant information and/or documentation for any bug fix, patch, workaround or other such Error correction made by Licensee to the Deliverables. BlueCreation shall own all Intellectual Property rights relating to any bug fixes, patches, workarounds or other such Error corrections made by Licensee to the Deliverables and BlueCreation shall be entitled to use such information for any purpose, including but not limited to for the purposes of this Agreement.
1.5 Ownership of Modifications. Except as provided in Section 1.5, Licensee shall exclusively own Modifications created by Licensee to the Deliverables subject to the underlying ownership rights of BlueCreation. Licensee shall have no obligation to disclose to BlueCreation any such Modifications except as provided in Section 1.5. Upon Licensee’s disclosure to BlueCreation of Modifications created by Licensee to the Deliverables, BlueCreation shall be entitled to use such Modifications for any purpose, including but not limited to for the purposes of this Agreement. Notwithstanding the foregoing, Licensee undertakes to and covenants with BlueCreation that it will not commence or threaten any lawsuit or other proceedings against BlueCreation or its Affiliates or its suppliers, or any of their respective licensees or customers, in any jurisdiction, where such proceedings allege infringement of Licensee’s Intellectual Property rights in the Modifications. No other rights except those expressly stated in this Section 2.5 shall be deemed granted, waived, or received by implication, estoppel or otherwise.
1.6 Audit. During the term of this Agreement (including the period of time set forth in Section 6.2 pertaining to Licensee’s continued use of the Proprietary Deliverables following termination) and for a period of two years thereafter, BlueCreation may appoint an independent third party auditor under an obligation of confidentiality to conduct, at BlueCreation’s expense, an inspection of such of Licensee’s records and practices as are directly related to its use of the Proprietary Deliverables and solely for the purpose of verifying Licensee’s compliance with the terms and conditions of this Agreement. BlueCreation shall exercise this right upon no fewer than sixty (60) days' prior written notice. Licensee will provide reasonable accommodation for the review. BlueCreation shall deliver to Licensee a copy of the results of any such review.
2. CONFIDENTIAL INFORMATION. The receiving party shall not disclose to any third party, or use in any manner not expressly permitted herein, any Confidential Information of the disclosing party. The receiving party agrees to take all reasonable measures to protect the disclosing parties Confidential Information and prevent unauthorized disclosure thereof, which measures shall be at least as stringent as those measures the receiving party takes to protect its own confidential information of like kind. Without in any way limiting the foregoing, the receiving party shall restrict access to the disclosing party’s Confidential Information to its employees and individual third party contractors working on site who have executed a written agreement sufficient to protect the Confidential Information in accordance with the provisions of this Agreement and who have a “need-to-know” to exercise the license rights granted herein. Notwithstanding the above, all Confidential Information, and any documents and other tangible objects containing or representing the Confidential Information, and all copies thereof shall be and remain the property of the disclosing party.
3. DISCLAIMER OF WARRANTIES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DELIVERABLES AND CONFIDENTIAL INFORMATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. BLUECREATION AND ITS SUPPLIERS DISCLAIM ANY WARRANTY OR OBLIGATION TO PROVIDE SUPPORT, UPDATES OR BUG FIXES FOR THE DELIVERABLES OR CONFIDENTIAL INFORMATION. NEITHER BLUECREATION NOR ITS SUPPLIERS MAKE ANY WARRANTY AS TO THE ACCURACY, SUFFICIENCY OR SUITABILITY FOR ANY PURPOSES WHAT¬SO¬EVER OF THE DELIVERABLES OR CONFIDENTIAL INFORMATION. NEITHER BLUECREATION NOR ITS SUPPLIERS MAKE ANY WARRANTIES OR REPRESENTATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRAN¬TIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, CORRESPONDENCE WITH DESCRIPTION, QUIET ENJOYMENT OR NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
4. LIMITATION OF LIABILITY. IN NO EVENT SHALL BLUECREATION, ITS AFFILIATES OR ANY OF ITS SUPPLIERS HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF THIS AGREEMENT OR LICENSEE’S USE OF OR INABILITY TO USE THE DELIVERABLES AND/OR CONFIDENTIAL INFORMATION, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS INTERRUPTION OR LOSS OF INFORMA¬TION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COLLECTIVE LIABILITY OF BLUECREATION, ITS AFFILIATES AND ITS SUPPLIERS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE TO BLUECREATION HEREUNDER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN JURISDICTIONS THAT PROHIBIT EXCLUSION OF LIABILITY OR LIMITATION OF IMPLIED WARRANTIES, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY BE LIMITED IN THEIR APPLICATION TO LICENSEE AND, DEPENDING ON LOCAL LAW, LICENSEE MAY HAVE OTHER SPECIFIC LEGAL RIGHTS.
5. TERM AND TERMINATION.
6.1 The licenses granted hereunder are perpetual unless terminated as specified in this Section
6.1. Licensee may terminate this Agreement at any time upon the provision of written notice to BlueCreation. Without prejudice to any other right or remedy which may be available to it, BlueCreation shall be entitled to terminate this Agreement immediately if Licensee: (i) ceases the development, commercialization and/or support of Licensee’s Product and/or Licensee’s Software; (ii) commits a material breach of any term hereof that is incapable of cure, including but not limited to an assignment or attempted assignment in violation of Section 7.1 hereof, and/or a material breach of any term hereof that is capable of cure but remains uncured thirty (30) days after notice from BlueCreation to Licensee of the existence of such breach; (iii) makes any voluntary arrangement with its creditors for the general settlement of its debts or becomes subject to the supervision of a bankruptcy tribunal; and/or (iv) has an order made against it, or passes a resolution, for its winding-up or has a lien holder take possession or has a receiver or similar officer appointed over all or substantially all of its property or assets.
6.2 Upon termination of this Agreement for any reason, Licensee agrees to immediately cease use of, and to return or destroy, at BlueCreation’s sole option, the Deliverables, all Modifications thereof, and any other Confidential Information of BlueCreation in Licensee’s possession, custody or control, together with all copies and merged portions in any form, including but not limited to deletion of the foregoing from Licensee’s computers, and to certify such return or destruction in writing. Notwithstanding the above, Licensee may retain one copy of the Proprietary Deliverables solely for the limited purpose of supporting Licensee customers who received a Licensee Product that was manufactured prior to the termination date of this Agreement. Notwithstanding anything to the contrary contained herein, Sections 1.1, 1.4, 1.5, 1.6, 1.7 and 2 through 8 shall survive any termination of this Agreement.
7.1 Licensee shall not assign or otherwise transfer this Agreement or any of its rights and obligations hereunder, whether in whole or in part, including by operation of law, without the prior written consent of an authorized signatory of BlueCreation. This Agreement will bind and inure to the benefit of the parties and any permitted successors and assigns.
7.2 Licensee hereby acknowledges that its breach of this Agreement may cause irreparable harm and significant injury to BlueCreation in an amount that may be difficult to ascertain and for which a remedy at law may be inadequate. Accordingly, Licensee agrees that, in addition to any other rights and remedies it may have, BlueCreation shall have the right to seek injunctive relief in any court of competent jurisdiction to enforce Licensee’s obligations under this Agreement.
7.3 This Agreement shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the Courts of England for the purpose of hearing and determining any legal dispute arising out of this Agreement.
7.4 When any notice is required or authorized hereunder, such notice shall be given in writing by recognized delivery service or personal delivery addressed to the other party. Notices shall be sent to Licensee at the address set forth in the signature block of this Agreement and to BlueCreation at the address set forth in the introductory paragraph of this Agreement. Either party may change the address for notice hereunder by providing the other party with ten (10) days written notice thereof.
7.5 The original of this Agreement has been written in the English language, and the governing language of this Agreement shall be English. Licensee hereby waives and agrees not to assert any right to have this Agreement written in the language of Licensee’s place of residence if other than English.
7.6 A waiver of any default hereunder or of any of the terms or conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in this Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement.
7.7 In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired, and a valid, legal and enforceable provision of similar intent and effect shall be substituted for such invalid, illegal or unenforceable provision.
7.8 This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and terminates all other prior and/or contemporaneous verbal and/or written agreements and understandings with respect thereto. No modifications to this Agreement shall be enforceable except when in writing and signed by an authorized signatory of each party. For the avoidance of any doubt, the parties expressly agree that any license terms which may be presented to a Licensee employee in the course of his or her access to or use of the BlueCreation Extranet (including where the Licensee employee is required to indicate his or her acceptance or acknowledgement of such license terms as a condition of such access or use) shall be void and of no force and effect to the extent that they relate to the Proprietary Deliverables, and shall not under any circumstances be deemed to modify or amend any of the terms and conditions of this Agreement.
8.1 “Affiliate” means a corporation or other entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, a party hereto (with “control” meaning ownership of more than fifty percent (50%) of the voting stock of the entity or, in the case of a non-corporate entity, an equivalent interest), that is not a competitor of BlueCreation with respect to the BlueCreation Product.
8.2 “Confidential Information” includes (i) the Deliverables and any portions, components or sub-files thereof; (ii) the structure, sequence and organization of the Proprietary Deliverables, and the concepts, methods of operations and ideas disclosed therein; (iii) any trade secrets relating to the Proprietary Deliverables and/or the BlueCreation Product; (iv) the terms and conditions of this Agreement; and (v) other information disclosed between the parties that a reasonable person would consider to be proprietary based upon nature of the information disclosed and/or the circumstances surrounding its disclosure. Confidential Information shall not include any portion of the Confidential Information which such party can demonstrate: (a) is in the public domain at or subsequent to the time such portion was disclosed to it through no fault of its own; (b) is rightfully in its possession free of any obligation of confidence at or subsequent to the time such portion was disclosed to it by the disclosing party; (c) is developed by its own employees independent of and without reference to any information disclosed to it by the disclosing party; or (d) is disclosed pursuant to the order of any court of competent jurisdiction, or any order of any government agency; provided, however, that either party shall provide prompt prior written notice thereof to the other party to enable such other party to seek a protective order or otherwise prevent such disclosure.
8.3 “Deliverables” means the firmware that is downloaded which includes the Proprietary Deliverables and/or Code Deliverables, together with any associated documentation and materials, in any form or media, provided by BlueCreation to Licensee pursuant to this Agreement.
8.4 “Error" means a defect or nonconformance which causes a Proprietary Deliverable not to perform substantially in accordance with BlueCreation documentation.
8.5 “Intellectual Property” means any patents, patent rights, trademarks, service marks, registered designs, topography and semiconductor mask work rights, applications for any of the foregoing, copyrights, know-how, unregistered design rights, trade secrets and any other similar protected rights in any country.
8.6 “Licensee’s Product” means a product, component, or technology developed by or on behalf of Licensee which incorporates the BlueCreation Product.
8.7 “Licensee’s Software” means a Licensee software product, component or technology which integrates the Deliverables and/or Modifications, is incorporated into Licensee’s Product or distributed for use solely with Licensee’s Product, and is operable exclusively with the BlueCreation Product.
8.8 “BlueCreation Product” means any BlueCreation module controller and other Intellectual Property of BlueCreation or a BlueCreation Affiliate disclosed to Licensee under this Agreement.
8.9 “Modifications” means, in relation to a Deliverable, any modification, adaptation, enhancement, new version, upgrade, translation, improvement or development of such Deliverable which is created by either party.
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