This Software Library License Agreement ("Agreement") is by and between DataPlex, Inc., a Califonia Corporation, its affiliate The Juran Company (collectively called "Developers"), and the users of Developer's Software Library ("Software Library"). Every user of Software is individually known as "Licensee."
To the extent that Licensee desires to utilize in any form Developers' Software Library, NOW, THEREFORE, as set forth herein, Developers and Licensee agree as follows:
Licensee shall not modify, copy, duplicate, reproduce, license or sublicense the Software Library, or transfer or convey the Software Library or any right in the Software Library to anyone else without the prior written consent of Developers, provided that Licensee may make one copy of the Software Library for backup or archival purposes. Licensee shall not reverse-engineer, make modifications to, or supply the code or related technical material of Software Library to any other party without the prior written consent of Developers.
In consideration for the grant of the license and the use of the Software Library, Licensee agrees to have entered into an appropriately written agreement with Developers.
4. Warranty of Title.
Developers hereby represent and warrant to Licensee that Developers are the sole exclusive owner of the Software Library or otherwise has the right to grant to Licensee the rights set forth in this Agreement. In the event any breach or threatened breach of the foregoing representation and warranty, Licensee's sole remedy shall be to require Developers or to either: i) procure, at Developers' expense, the right to use the Software Library, ii) replace the Software Library or any part thereof that is in breach and replace it with Software Library of comparable functionality that does not cause any breach, or iii) refund to Licensee the full amount of the license fee upon the return of the Software Library and all copies thereof to Developers.
5. Warranty of Functionality.
A. For a period of 90 days following delivery of the Software Library to Licensee (the "Warranty Period") or for the duration of any mutually agreed upon maintenance agreement, Developers warrant that the Software Library shall perform in all material respects according to the Developer's specifications concerning the Software Library when used with the appropriate computer equipment. In the event of any breach or alleged breach of this warranty, Licensee shall promptly notify Developer. Licensee's sole remedy shall be that Developers shall correct the Software Library so that it operates according to the warranty. This warranty shall not apply to the Software Library if modified by anyone or if used improperly or on an operating environment not approved by Licensor.
B. In the event of any defect in the media upon which the Software Library is provided arising within 90 days of the date of delivery of the Software Library, upon return to Developers of the Software Library upon the original media, Developers shall provide Licensee a new copy of the Software Library.
6. Software Library Maintenance.
A. Standard Maintenance. During the Warranty Period, Developers may provide to Licensee any new, corrected or enhanced version of the Software Library as created by Developers. Such enhancements may include all modifications to the Software Library that increases the speed, efficiency or ease of use of the Software Library, or add additional capabilities or functionality to the Software Library, but may not include any substantially new or rewritten version of the Software Library.
B. Optional Maintenance. After expiration of the Warranty Period, Licensee may continue to receive maintenance support for successive twelve (12) month periods. The charge for such optional maintenance support shall be based on a proposal by Developers or on Developers' price list. Licensor shall notify Developers in writing if it desires to receive optional maintenance. If Licensee declines to take optional maintenance and later elects to receive it, Developers reserves the right to charge Licensee their maintenance fees for the period of the lapse in maintenance. Developers may elect to discontinue maintenance at any time upon notice to Licensee, and refund of any then unearned or prorated maintenance fees.
Payment of the license fee shall be made on or before delivery of the Software Library. Payment of any other amount owed by Licensee to Developers pursuant to this Agreement shall be paid within thirty (30) days following invoice from Developers. In the event any overdue amount owed by Licensee is not paid following ten (10) days written notice from Developers, then in addition to any other amount due, Developers may impose and Licensee shall pay a late payment charge at the rate of one percent (1%) per month on any overdue amount.
In addition to all other amounts due hereunder, Licensee shall also pay to Developers, or reimburse Developers as appropriate, all amounts due for property tax on the Software Library and for sales, use, excise taxes or other taxes which are measured directly by payments made by Licensee to Developers. In no event shall Licensee be obligated to pay any tax paid on the income of Developers or paid for Developers' privilege of doing business.
9. Warranty Disclaimer.
DEVELOPERS' WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability.
Developers shall not be responsible for, and shall not pay, any amount of incidental, consequential or other indirect damages, whether based on lost revenue or otherwise, regardless of whether Developers were advised of the possibility of such losses in advance. In no event shall Developers' liability hereunder exceed the amount of license fees paid by Licensee, regardless of whether Licensee's claim is based on contract, tort, strict liability, product liability or otherwise.
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.
12. Governing Law.
This Agreement shall be construed and enforced in accordance with the laws of the state of California.
13. No Assignment.
Neither this Agreement nor any interest in this Agreement may be assigned by Licensee without the prior express written approval of Developers.
14. Final Agreement.
Notwithstanding an optionally signed copy by agents of both Developers and Licensee, this Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.