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1989-05-19
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PROGRAM END USER SITE LICENSE AGREEMENT
Dan Baumbach and Helpware (Licensor) grants to
__________________________________________ (Licensee), and
Licensee accepts, a license to use the licensed program in
accordance with the terms and conditions contained in this
agreement.
1.0 DEFINITIONS
1.1 "Licensed program" means the object code version of the
program listed in Exhibit 1 and related program user
documentation. No rights to the source code versions of the
licensed program are granted by this license.
1.2 "Object code" means any instruction or set of instructions
in machine readable form.
1.3 "User documentation" means any standard manuals or other
related materials used for user instruction or reference in use
of the licensed program.
1.4 "Use" means copying of any portion of the licensed program
from a storage unit or media into the designated equipment and
execution of the licensed program on the equipment.
2.0 LICENSE GRANT
2.1 Licensee is granted a nontransferable, nonexclusive right to
use the number of copies of the licensed program indicated on
Exhibit 1 for Licensee's internal use. Licensor will deliver one
copy of the licensed program to Licensee. Licensee may make
additional copies of the licensed program, up to the number of
copies licensed herein, provided that each copy of the program
contains Licensor's copyright notice and any other proprietary
legends, including legends under the Federal Acquisition
Regulations (FAR), if any, contained on the delivered copy.
2.2 Each copy of the licensed program provided under this
license may be used on only one computer at any one time.
2.3 Licensee shall not use, copy, rent, lease, sell, modify,
decompile, disassemble, otherwise reverse engineer, or transfer
the licensed program except as provided in this agreement. Any
such unauthorized use shall result in immediate and automatic
termination of this license.
3.0 TERMS
3.1 This license is effective until terminated. Licensee may
terminate it at any time by destroying the licensed program and
all copies of it an notifying the Licensor in writing. This
license will also terminate as otherwise provided in this
agreement. On termination, Licensee shall return all materials
not destroyed to Licensor together with a written verification
that the remaining materials have been destroyed.
4.0 PAYMENT
4.1 The fee for this license is set forth in Exhibit 1, payable
as set forth.
5.0 CONFIDENTIALITY AND PROPRIETARY RIGHTS
5.1 The licensed program is licensed, not sold. Nothing in this
agreement shall be construed as conveying title in the licensed
program to Licensee.
5.2 Licensee understands and agrees that the licensed program
and all documentation related thereto constitute the valuable
properties and trade secrets of Licensor, owner of the copyright
to the licensed program, embodying substantial creative efforts
which are secret, confidential, and not generally known by the
public, and which secure to Licensor a competitive advantage.
5.3 Licensee agrees during the term of this license, and
thereafter, to hold the licensed program, including any copies
thereof and any documentation related thereto, in strict
confidence and to not permit any person or entity to obtain
access to it except as required for Licensee's own internal use
hereunder.
5.4 Licensee shall inform Licensor promptly and in writing of
any actual or suspected unauthorized use or disclosure of the
licensed programs or documentation related thereto.
5.5 The obligations under this paragraph shall survive the
termination or rescission of this agreement.
6.0 LIMITED WARRANTY
6.1 Licensor warrants that for a period of ninety days from the
date of delivery of the licensed program the program, if
unmodified by the Licensee, will perform in substantial
conformity with the user documentation. Licensor does not
warrant that the licensed program is free from coding errors.
Any program problems reported to Licensor during the warranty
period and determined by the Licensor to be actual coding errors
will be corrected by Licensor within a reasonable time. Any
modifications to the licensed program shall thereafter be
licensed AS IS.
6.2 The above warranty does not apply to the extent that any
failure of the licensed program to perform as warranted is caused
by the licensed program being (1) not used in accordance with the
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user documentation, or (2) modified by any person other than
authorized Licensor personnel.
6.3 Within forty-five days after delivery of the first copy of
the licensed program, Licensee shall perform such tests as it
deems necessary to determine that the licensed program operates
substantially in conformity with the user documentation. If
during such tests Licensee determines that the licensed program
does not so perform after following the error procedures
described in the user documentation, Licensee shall immediately
notify Licensor, setting forth the defects noted with the
specificity requested by Licensor. Upon notification of reported
defects, Licensor shall have a reasonable time to determine if
actual coding errors exist and, if so, to remedy those errors.
Within fifteen days after redelivery, Licensee shall retest the
program and report any other problems encountered. Unless
Licensee notifies Licensor of defects encountered within the
forty-five day test period, the licensed program shall be deemed
to have been accepted.
6.4 LICENSOR MAKES AND LICENSEE RECEIVES NO OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.0 LIMITATION OF LIABILITY
7.1 The total liability of Licensor or its suppliers for any
claim or damage arising out of the use of the licensed program or
otherwise related to this license shall be limited to direct
damages which shall not exceed the license fee(s) which have been
paid by Licensee to Licensor for the specific client project
which is the subject of such claim or damage.
7.2 IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR
ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THE USE OF
THE LICENSED PROGRAM OR RELATED TO THIS LICENSE.
8.0 TERMINATION. THIS LICENSE MAY BE TERMINATED BY LICENSOR IF:
8.1 Licensee fails to comply with any material term or condition
of this agreement and Licensee fails to cure such failure within
fifteen days after notices of such failure by Licensor; and
8.2 Licensee's normal business operations are disrupted or
discontinued for more than thirty days by reason of insolvency,
bankruptcy, receivership, or business termination.
9.0 GENERAL TERMS
9.1 Neither this agreement nor any rights or obligations
hereunder shall be assigned or otherwise transferred by Licensee
without prior written consent of Licensor, which consent will not
be unreasonably withheld. Licensor may assign this agreement
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entirely in its discretion upon the express written assumption of
the obligations hereunder by the assignee.
9.2 This agreement shall be interpreted and enforced in
accordance with and shall be governed by the laws of the State of
California applicable to contracts between residents. No suit for
enforcement of or for a declaration of rights between the parties
to this agreement shall be commenced in any court other than the
Municipal or Superior Court in and for the County of Marin State
of California.
9.3 Any controversy or claim arising out of or relating to this
agreement or the breach thereof shall be settled by arbitration
in accordance with the commercial rules of the American
Arbitration Association, using an arbitrator with knowledge of
computers and software, and judgement upon the award rendered by
the arbitrator(s) may be entered in any court having jurisdiction
thereof. No arbitration or other action arising out of any
claimed breach of this agreement or transactions under this
agreement may be demanded by either party more than one year
after the cause of action accrued. The prevailing party in any
such action related to or arising under this agreement shall be
entitled to reasonable attorneys' fees.
9.4 This agreement and its exhibits contain the entire agreement
between the parties hereto, superceding all previous agreements,
representations, understandings and negotiations. This agreement
may not be amended other than by writing signed by an authorized
representative of the parties.
9.5 In any terms or provisions of this agreement shall be found
to be illegal or unenforceable then, notwithstanding, this
agreement shall remain in full force and effect and such term or
provision shall be deemed stricken.
9.6 No amendment of this agreement shall be effective unless it
is in writing and signed by duly authorized representatives or
both parties. No term or provision hereof shall be deemed waived
and no breach excused unless such waiver or consent shall be in
writing and signed by the party claimed to have waived or
consented. Any consent by any party to or waiver of a breach by
the other, whether express or implied, shall not constitute a
consent to, waiver of or excuse for any other, different or
subsequent breach.
9.7 This agreement shall be binding on and shall inure to the
benefit of the heirs, executors, administrators, successors and
assigns of the parties hereto, but nothing in this paragraph
shall be construed as a consent to any assignment of this
agreement by either party except as provide hereinabove.
9.8 Time is of the essence of this agreement.
9.9 This agreement may be signed in counterparts.
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Effective this ______ day of ____________________, 19__.
LICENSEE LICENSOR
___________________________ ____________________________
Authorized Representative Authorized Representative
Typed name_________________ Typed name: Dan Baumbach
Title______________________ Title: Owner
Address____________________ Address: Helpware
___________________________ 100 Bayo Vista Way #6
___________________________ San Rafael, CA 94901
EXHIBIT 1
Licensed Programs
LICENSED PROGRAM NUMBER OF COPIES LICENSE FEE PAYABLE
Director 10 to 25 $20.00 per copy.
Director 26 to 50 $17.00 per copy.
Director 51 to 100 $13.00 per copy.
Director 101 and up $10.00 per copy.
All site lisences include one program diskette and one manual.
Additional diskettes are available at $5.00 each. Additional
manuals are also $5.00 each.
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The above is a Corporate Site License Agreement for multiple copies
of Director to be made by the end user. To initiate an agreement
submit two completed, signed copies to Helpware along with a check
for the amount of your license agreement.