License #: 9603211
SOFTWARE LICENSE AGREEMENT
This Agreement is made by and between GemStone Systems, Inc. ("GEMSTONE"),
an Oregon corporation, and the Licensee, each being identified and having a
place of business as given on the Software Order Form.
1. DEFINITIONS
As used herein, the terms set forth below shall have the following respective
meanings:
1.1 "GEMSTONE" shall mean GemStone Systems, Inc., an Oregon corporation.
1.2 "LICENSEE" shall mean the entity identified on the Software Order Form.
1.3 "SOFTWARE PRODUCTS" shall mean the products identified in the Product
Description on the Software Order Form in the form delivered by GEMSTONE,
together with other products subsequently licensed to Licensee by GEMSTONE,
and all updates of the same provided to Licensee by GEMSTONE.
1.4 "TECHNICAL DATA" shall mean manuals, specifications and other written
materials and verbal or written communication via FAX, telephone, electronic
or other methods provided to Licensee by GEMSTONE in connection with the
Software Products.
1.5 "NAMED USER" shall mean a specific individual employed by Licensee who
is individually authorized to use the Software Products as specified on the
Software Order Form.
1.6 "CONCURRENT USER" shall mean an individual employed by Licensee who is
authorized to use the Software Products concurrently with other employees of
Licensee as part of a group of users which shall not exceed the number set
forth on the Software Order Form.
1.7 "NAMED DEVELOPER" shall mean an individual employed by Licensee who is
individually authorized to use the Software Products, and to develop the
Software Products as specified in Section 5.2 of this Agreement, as specified
on the Software Order Form.
2. LICENSE GRANT
2.1 GEMSTONE hereby grants to Licensee, and Licensee hereby accepts from
GEMSTONE, a non-exclusive license, without right to sublicense, to use the
Software Products and Technical Data; provided, however, that such use of the
Software Products shall be limited to use by the users described on the
Software Order Form, as amended from time to time by written agreement
between Licensee and GEMSTONE, and provided that Licensee is current on
payment of all license fees.
2.2 The Software Order Form includes a description of the maximum number
of individuals whom Licensee may allow to use the Software Products, either
individually in the case of Named Users or Named Developers or as part of a
group of other employees in the case of Concurrent Users. Licensee shall not
allow the use of the Software Products except on equipment owned or leased by
Licensee for Licensee's business purposes. Licensee shall not allow the use
of the Software Products by any users not authorized under this Agreement
without first notifying GEMSTONE and paying any additional charges pursuant
to GEMSTONE's then current price list.
3. OWNERSHIP
3.1 Title to and ownership of Software Products, including all copies
thereof, and all rights therein including trade secrets, patents, and
copyrights, shall remain with GEMSTONE. No title or ownership of Software
Products or any part or modification thereof is transferred to Licensee.
4. PROPRIETARY NOTICES
4.1 Licensee shall not remove or alter GEMSTONE's ownership, trademark,
copyright, or other proprietary notices on Software Products or Technical
Data.
4.2 Where applicable, the Software Products and Technical Data shall be
marked with an appropriate legend under the Federal Acquisition Regulations
(FAR) or other similar regulations.
5. USE RESTRICTIONS
5.1 Licensee shall not modify, adapt, translate, reverse engineer,
decompile, or disassemble Software Products. Licensee agrees not to develop
derivative works which are intended to be functionally equivalent substitutes
for the Software Products or any part thereof.
5.2 Notwithstanding the foregoing, Licensee may, through Named Developers
only, modify the Software Products to the extent necessary in connection with
Licensee's creation of applications for the Software Products, provided that
such permitted modifications shall be for Licensee's internal use only, and
Licensee shall not sell, distribute or otherwise provide access to such
modifications to any third party. Such permitted modifications shall be
deemed to be part of the Software Products which may be used by Licensee only
in accordance with this Agreement. GEMSTONE shall be the sole owner of any
modifications to the Software Products.
6. COPY RESTRICTIONS
6.1 Licensee shall not copy Software Products or Technical Data except as
required for use of the Software Products as provided in this Agreement, and
for archival storage to assure against loss. Licensee must reproduce and
include the GEMSTONE copyright notice and other proprietary notices on each
archival copy. In no event shall Licensee provide copies of, or access to, the
Software Products or Technical Data to any third party.
7. KEY FILES
7.1 Licensee acknowledges that the Software Products licensed hereunder
contain Key Files which are a form of disabling code. For the purpose of this
paragraph, "disabling code" means computer code which interferes with the normal
operation of the Software Products in order to prevent unauthorized use of
the Software Products. At the request of Licensee, GEMSTONE will provide
reasonable advice and assistance to Licensee with respect to any Key File in
order to ensure that the existence of such code does not interfere
with Licensee's authorized use of the Software Products.
8. CONFIDENTIALITY
8.1 Licensee understands and acknowledges that it will receive confidential
information from GEMSTONE in connection with this Agreement, including without
limitation the Technical Data and other information related to the Software
Products which is marked as "confidential" by GEMSTONE. Licensee shall not
disclose such information to any third party, except for its employees with
a need for access to the information, or use the information for any purpose
not contemplated or permitted under this Agreement, Licensee shall take
reasonable steps to insure that its employees who receive the information
understand and acknowledge the obligations of confidentiality. The
obligations of confidentiality imposed upon Licensee under this Agreement
shall survive the termination or cancellation of this Agreement. If an
employee, former employee or any other person affiliated with Licensee
breaches the obligations of confidentiality provided for in this section,
Licensee agrees to give GEMSTONE reasonable assistance in enforcing its
rights against such person.
8.2 Notwithstanding the foregoing, Licensee shall have no obligation to hold
any information in confidence to the extent that Licensee can show by
documentary evidence that such information: (a) is already known to Licensee
at the time it is obtained by Licensee from GEMSTONE, free from any
obligations to hold such information in confidence; (b) is or becomes
publicly known through no wrongful act of Licensee; (c) is rightfully
received from a third party without restriction and without breach of any
obligation to GEMSTONE or its suppliers; or (d) is independently developed by
Licensee without use of any confidential information of GEMSTONE or its
suppliers.
9. PAYMENT
9.1 Full payment is due within 30 days from the date Licensee receives
proper invoice for the Software Products or Technical Data to Licensee. All
amounts are payable in U.S. Dollars by check or money order payable to
GemStone Systems, Inc. All taxes, duties and fees, if any, are to be paid by
Licensee, except for taxes on the income or revenue of GEMSTONE. GEMSTONE
reserves the right to modify the credit terms applicable to this Agreement at
any time.
10. TERM AND TERMINATION
10.1 The term of this Agreement shall commence on the date indicated in the
Software Order Form and shall continue until terminated pursuant to this
Section 10.
10.2 Either party may, by written notice, terminate this Agreement if the
other party fails to remedy any default under this Agreement within 30 days
of receipt of written notice specifying such default.
10.3 Upon termination of this Agreement for any reason, all licenses
granted hereunder shall terminate, and Licensee shall immediately cease use
of and shall return to GEMSTONE all copies of the Software Products and
Technical Data.
11. SHIPMENT
11.1 GEMSTONE shall ship Software Products or Technical Data ordered by
Licensee as soon as practical after acceptance of Licensee's order. All
shipments of Software Products and Technical Data shall be F.O.B. Beaverton,
OR, and the risk of loss shall pass to Licensee upon delivery to the carrier.
When an order is not accompanied by shipping instructions, GEMSTONE shall
select the carrier. In no case shall GEMSTONE assume any liability in
connection with the shipment nor shall the carrier be construed as an agent
for GEMSTONE. GEMSTONE shall not be liable for any damages or penalties for
delivery delays due to causes beyond its reasonable control. All shipping,
handling, and insurance charges, if any, are to be paid by Licensee.
11.2 Each offer placed by Licensee for Software Products or Technical Data
shall be deemed to incorporate all of the terms and conditions of this
Agreement.
12. SUPPORT
12.1 Updates and support to the Software Products will be subject to a
separate Software Maintenance Agreement.
13. WARRANTY; LIMITATION OF LIABILITY
13.1 GEMSTONE warrants that Software Products will perform substantially in
accordance with published specifications for a period of 30 days after the
date the Software Products have been shipped to Licensee (hereinafter
"Warranty Period"). This warranty applies only to the initial delivery of
Software Products under this Agreement. This warranty shall not apply to (a)
updates to or additional copies of the Software Products, (b) expansion of
the number of users, or (c) subsequent offerings of the Software Products
unless GEMSTONE designates a subsequent offering as a new product subject to
this warranty.
13.2 During the Warranty Period, GEMSTONE shall attempt, without charge, to
diagnose, verify and correct errors or defects in the Software Products that
are identified in writing by notice to GEMSTONE, and any corrections for
errors or defects may, at GEMSTONE's election, be corrected by the delivery
of modifications to the Software Products or Instructions on how to avoid the
error or defect.
13.3 GEMSTONE's warranty and software maintenance obligations shall not
apply with respect to problems caused by modifications to the Software
Products made by Licensee.
13.4 GEMSTONE's liability to the Licensee for all damages, costs, claims, or
demands incurred or suffered by or awarded against Licensee arising directly
or indirectly out of the performance or any breach of this license shall in no
event exceed the total amount paid to GEMSTONE under the License.
13.5 THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS,
EXPRESSED OR IMPLIED, INCLUDED BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. GEMSTONE SHALL NOT BE
RESPONSIBLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT OR TORT, DUE TO ANY
FORESEEN OR UNFORESEEN CAUSE FROM LICENSEE'S OR ANY THIRD PARTY'S USE OR THE
PERFORMANCE OF THE SOFTWARE PRODUCTS UNDER THIS AGREEMENT.
14. INDEMNITY BY GEMSTONE
14.1 GEMSTONE agrees to indemnify Licensee, as limited by this paragraph,
with respect to any suit, claim or proceeding brought against Licensee
alleging that Licensee's use of the Software Products constitutes an
infringement of any valid United States patent or copyright. GEMSTONE agrees
to defend Licensee against any such claims and to pay litigation costs,
reasonable attorney's fees, and damages awarded by a court of competent
jurisdiction: if, and only if, Licensee promptly gives notice to GEMSTONE of
any such suit, claim or proceeding and cooperates with GEMSTONE in the
defense or settlement of such suit, claim or proceeding; and provided that
GEMSTONE shall have sole control thereof.
14.2 If a claim or allegation is made, or in either party's judgment is likely
to arise, Licensee agrees that GEMSTONE may, at GEMSTONE's option, (i)
procure for Licensee the right to continue using the portion of the Software
Product enjoined from use; (ii) replace or modify the Software Product so that
Licensee's use is not subject to any such injunction: or (iii) accept return
of the Software Product to GEMSTONE, and in the event of such return, refund
the license fee paid for the Software Product. GEMSTONE shall have no further
liability or obligations arising from patents or copyrights under this
Agreement.
14.3 The indemnity obligations under this Section 14 shall not apply to
claims to the extent that they arise from any modification or alteration of a
Software Product by any party other than GEMSTONE.
14.4 The limitations in Section 13 shall not apply with respect to
GEMSTONE's indemnity obligations under this Section 14.
15. INDEMNITY BY LICENSEE
15.1 Licensee acknowledges that GEMSTONE has no knowledge of, or control
over, the applications of the Software Products made by Licensee. Licensee
agrees to defend, indemnify and hold GEMSTONE harmless with respect to any
suit, claim or proceeding brought against GEMSTONE alleging that use by, or
under authority of, Licensee of the Software Products caused personal
injury, property damages, or economic loss.
16. GENERAL
16.1 This Agreement and the other documents referred to in this Agreement
constitute the entire agreement between the parties and supersedes all prior
or contemporaneous agreements or representations, written or oral, concerning
the subject matter of this Agreement. This Agreement may be amended only by a
written instrument stating an intention to modify this Agreement and signed by
a duly authorized representative of the party to be bound.
16.2 Failure by either party at any time to require performance by the other
party or to claim a breach of any term or condition of this Agreement shall
not be construed as affecting any subsequent breach or the right to require
performance with respect thereto or to claim a breach with respect thereto.
16.3 This Agreement may not be assigned by Licensee without the prior
written permission of GEMSTONE.
16.4 If any provision in this Agreement may be held to be invalid or
unenforceable in any jurisdiction in which this Agreement is being performed,
the meaning of such provision shall be construed so as to render it
enforceable to the extent feasible. If no feasible interpretation would save
such provision, it shall be severed from this Agreement and the remainder
shall remain in full force and effect. However, in the event such provision
is considered an essential element of this Agreement, the parties shall
promptly negotiate alternative, reasonable equivalent, enforceable terms.
16.5 The rights and obligations of the parties and all interpretations and
performance of this Agreement shall be governed in all respects by the laws
of the Sate of Oregon without regard to rules concerning the conflict of
laws.
16.6 Section headings are inserted for convenience only and shall not be used
in any way to construe the terms of this Agreement.
16.7 In the event that suit or other action is instituted to interpret or
enforce this Agreement, the prevailing party shall be entitled to recover its
attorney fees, including those incurred on appeal, as determined by the court.
16.8 For any Software Products acquired directly or indirectly on behalf of
a unit or agency of the United States Government, this provision applies.
A. For civilian agencies: the Software Products
(i) were developed at private expense, are existing computer
software and no part of them were developed with government funds;
(ii) are a trade secret of GEMSTONE for all purposes of the Freedom
of Information Act;
(iii) are "restricted computer software" submitted with restricted
rights in accordance with subparagraphs (a) through (d) of the
Commercial Software - Restricted Rights clause at 52.227-19 of the
Federal Acquisition Regulations ("FAR") and its successors and as
expressly stated in GEMSTONE's standard commercial agreement
incorporated into the contract or purchase order between GEMSTONE and
the government entity, except that the government agency shall not have
the right to disclose the Software Products to support service
Contractors or their subcontractors without GEMSTONE's prior written
consent;
(iv) in all respects are proprietary data of GEMSTONE; and
(v) are unpublished and all rights are reserved under the copyright
laws of the United States.
B. For units of the Department of Defense ("DoD"): The Software
Products are licensed only with "Restricted Rights" as that term
is defined in the DoD Supplement to the FAR, clause
52.227-7013(c)(1)(ii), Rights in Technical Data and Computer
Software and its successors, and use, duplication or disclosure is
subject to the restrictions set forth therein, with the exception
that the government agency shall not have the right to disclose
the Software Products to subcontractors or agents of the
government without GEMSTONE's written consent.
By executing this Agreement, the undersigned authorized representative of
Licensee acknowledges that he or she has read and understands all these terms
and conditions, and that he or she has the authority to enter into this
Agreement on behalf of the Licensee.
LICENSEE:
/s/ ▇▇▇▇ ▇. ▇▇▇▇
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Authorized Signature
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Print Name
Negotiator
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Title
8/1/96
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Date
GEMSTONE:
/s/ ▇▇▇ ▇. ▇▇▇▇
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Authorized Signature
▇▇▇ ▇. ▇▇▇▇
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Print Name
Sr. VP Worldwide Operations
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Title
8/29/96
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Date
