Fee for Unlimited Distribution and customized software: $3000
See contract listed below.
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:
1. Definitions
a. Software shall mean officially released versions of WinKey Disabler and the associated on-line documentation, either as provided to ASSOCIATE by TINY PLANET or as enhanced by ASSOCIATE.
b. Updates shall mean any extensions, enhancements, corrections, revisions or modifications to the Software. All Updates delivered by TINY PLANET to ASSOCIATE during the term of this Agreement shall be considered part of the Software and shall be covered under the terms of this Agreement.
c. Users shall mean the recipients of the Software distributed by ASSOCIATE.
2. License. TINY PLANET hereby grants to ASSOCIATE a nonexclusive, world-wide license to use, reproduce and distribute the Software subject to the provisions of this Agreement.
3. Ownership. All rights, title and interest in and to the Software are and shall at all times remain TINY PLANET's and/or TINY PLANET's suppliers' sole and exclusive property.
4. Updates. Within thirty (30) days of notification by TINY PLANET of the availability of an Update, ASSOCIATE shall stop distributing any prior versions and start distributing the updated version to any future customers.
5. Notices and Labels. All copyright, trademark, trade secret, license, promotional and proprietary notices included in any portion of the Software shall be included in the corresponding portions of copies made by ASSOCIATE. ASSOCIATE shall not remove, obscure or prevent from displaying such notices that already exist in the Software. ASSOCIATE shall include TINY PLANET's copyright notice in the materials accompanying the Software. The copyright notice shall read: "Portions of this software Copyright 1998, Tiny Planet "
6. Technical Support. ASSOCIATE acknowledges and understands that Users are NOT entitled to any technical support, bug fixes, enhancements or updates to the Software under this Agreement. TINY PLANET, at its sole option, will make Technical Support and Updates available to ASSOCIATE, who will then at their sole discretion, provide such support to Users.
7. Marketing. TINY PLANET may, in press releases, promotions on TINY PLANET's world wide web site and in other media, reference ASSOCIATE's name as a WINKEY DISABLER associate.
8. Compliance with U.S. Export
Laws. ASSOCIATE agrees
to comply with the United States Export Administration Act of
1979 as amended, and with the Export Administration Regulations
promulgated from time to time thereunder by the United Stated
Department of Commerce or such other governmental entity as may
have jurisdiction over United States exports.
ASSOCIATE agrees that ASSOCIATE does not intend to nor will, directly
or indirectly, export or transmit the Software to any country
to which such export or transmission is restricted by any applicable
U.S. regulation or statute without the prior written consent,
if required, of the Bureau of Export Administration of the U.S.
Department of Commerce or such other governmental entity as may
have jurisdiction over such export or transmission.
9. No Warranty. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH DISTRIBUTOR.
10. Indemnification. ASSOCIATE hereby agrees to indemnify, defend and hold harmless TINY PLANET, its licensors, and their directors, officers, employees and agents from any expenses or losses arising from any breach by ASSOCIATES of its obligations hereunder and from any claims that any items or services offered or provided by ASSOCIATES with the Software infringes the copyright, trademark rights or other intellectual property rights of any third party or violates any applicable law or regulation.
11. Limitation of Remedy. IN NO EVENT WILL TINY PLANET BE LIABLE TO ASSOCIATE OR TO ANY THIRD PARTY FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, SPECIAL, RELIANCE, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF ASSOCIATE'S OR ANY THIRD PARTY'S USE OR INABILITY TO USE THE LICENSED PROGRAMS, EVEN IF TINY PLANET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ASSOCIATE SHALL INDEMNIFY TINY PLANET FOR ALL EXPENSES RESULTING FROM SUCH CLAIMS, INCLUDING COSTS AND LEGAL FEES.
12. Term and Termination. The term of this Agreement shall continue for a period of five (5) years, subject to earlier termination by TINY PLANET upon ASSOCIATES's breach of any of its obligations hereunder which is not cured within thirty (30) days after written notice of such default. Upon expiration of the initial term hereof, the term shall be automatically renewed for additional periods of one (1) year, subject to the delivery of written notice of either party to the other, at least sixty (60) days prior to the expiration of the then current term, that it does not wish to renew. Upon termination of this Agreement, ASSOCIATE shall discontinue duplication and distribution of the Software.
13. Entire Agreement. This Agreement sets forth all of the promises, agreements, conditions and understandings between the parties and constitutes the entire agreement between the parties. This Agreement supersedes prior discussions and agreements of the parties relating to the subject matter hereof. ASSOCIATES shall not transfer, assign, or attempt to transfer or assign this Agreement or any right or obligation hereunder without the prior written consent of TINY PLANET. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant portions shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the parties hereto. This Agreement may not be modified, amended, rescinded, canceled or waived, in whole or part, except by a written instrument signed by authorized representatives of TINY PLANET and LICENSEE.
14. General Provisions
a. Wherever in this Agreement notification is required to be given
in writing, it shall be understood to mean by written notice via
registered mail to the receiving party's last known address.
b. 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
unless this Agreement is terminated as provided herein.
c. Neither party is responsible for failure to fulfill its obligations
under this Agreement due to causes beyond its reasonable control.
d. Nothing in this Agreement shall be deemed to imply or constitute
either party as the agent or representative of the other party,
or both parties as joint ventures or partners for any purpose.
e. The charges specified in this Agreement are exclusive of all
federal, state, local and foreign taxes, levies and assessments.
ASSOCIATE agrees to bear and be responsible for the payment of
all such taxes, levies and assessments imposed on ASSOCIATE or
TINY PLANET arising out of this Agreement excluding any income
tax imposed on TINY PLANET by a governmental entity of the United
States.
g. Headings are for reference purposes only.