This agreement (the "Agreement") sets forth the terms and conditions for licensing and use of the Source Code for SysInfo software (the "Software") from MagniComp, with a principal place of business at 5818 Vitero Way, San Jose, CA 95138 USA, ("MagniComp") to you ("Licensee"). Clicking the "yes" or "I accept" button and/or downloading and/or accessing the Source Code indicates that you have read and understand this Agreement and accept its terms and conditions effective immediately.
MagniComp and Licensee hereby agree as follows:
1.1 Licensee Derivative Works: means all derivative works of the Software made by Licensee.
1.2 Confidential Information: means (i) the Source Code and the source code to Licensee Derivative Works; (ii) either party's business or financial information and plans, including without limitation customer information; and (iv) any other information, whether in print, magnetically stored, or in some other form, that MagniComp designates as confidential or which, under the circumstances surrounding the disclosure, should be treated as confidential to MagniComp. Confidential Information also includes any information that, as a matter of applicable law (such as consumer or end-user personal data) must be kept confidential. "Confidential Information" will not include information that the receiving party can demonstrate by clear and convincing evidence: (a) it received rightfully from another party without an obligation of confidentiality prior to its receipt from the disclosing party, (b) the disclosing party has generally disclosed to the public without any obligation to maintain such information in confidence; or (c) the receiving party can establish and document as being developed independently without access to any Confidential Information received from the disclosing party.
1.3 Contract For, Contracted For, and Contracting For: shall mean the receipt by MagniComp of a purchase order for a product or service, or the submission by MagniComp of an invoice for a product or service.
1.5 Documentation: means any user documentation, on any media, provided by MagniComp for use with the Software.
1.6 End-User: shall mean the person or entity that agrees to the terms of an End-User License Agreement and is authorized to access and use the Software.
1.8 MagniComp Product: shall mean the Software and Licensee Derivative Works.
1.10 Product Trademarks has the meaning assigned to such term in Section 9.
1.11 Reseller: means any third party with a written agreement with MagniComp to distribute Software, only in object code form to other resellers or end-users in accordance with the terms of this Agreement.
1.12 Software: The term "Software" shall mean MagniComp's SysInfo product.
1.14 Support Agreement: means an agreement between MagniComp and an End-User pursuant to which MagniComp undertakes to provide technical support and/or updates for one or more Software products to such End-User.
1.15 Source Code: means the specified source code of the Software whether in print, magnetically stored, or in some other form, and related materials that MagniComp may provide to Licensee, and any such source code to the extent included in any Licensee Derivative Work.
2.1 Use of Source Code. MagniComp hereby grants to Licensee a non-exclusive and (except as provided in Section 19.1 hereof) non-transferable license to use the Source Code to create Licensee Derivative Works for the sole interal use by Licensee in compliance with the terms and conditions of the Software End User License Agreement. This agreement does not provide the Right-To-Use the Software in any form, including Object Code form, outside the scope of the Software End User License Agreement. Source Code will be used by Licensee only for interal support and maintenance of the Software.
2.2 Use of Derivative Works. Licensee is not allowed to sell, lease, distribute, or in any way provide access to the Source Code or any Derivative Works to any party other than the Licensee or subsidiary company of Licensee.
2.3 No Sale. The licenses granted under this Agreement do not constitute a sale of the Software or any portion or copy of it.
2.4 Modifications. Any modifications made by Licensee to the Software Source Code must be made available to MagniComp within 30 days. Upon turning over such modifications, Licensee grants MagniComp full ownership of modifications and relinquishes all rights to said modifications.
3.1 Ownership and Retention of Rights. Licensee acknowledges that MagniComp, and its Licensors, own and shall retain all right, title and interest in and to: (i) the Software and updates, including all copies, modifications, and derivative works thereof (subject to Section 3.2), and Documentation, including all intellectual property rights embodied therein; (ii) all of the service marks, trademarks, trade names or any other designations associated with the Software; and (iii) all copyrights, patent rights, trade secret rights, and other proprietary rights relating to the Software, the Source Code, the Documentation, or the Confidential Information. Licensee further acknowledges and agrees that it shall have no rights with respect to any of the foregoing other than the rights expressly set forth in this Agreement.
3.2 Licensee Derivative Works. Licensee shall not create any derivative works based solely upon any patents owned or controlled by MagniComp which are embodied in the Software.
3.3 Restrictions on Use. Licensee agrees: (i) not to remove any MagniComp identification or notices of any proprietary, patent or copyright restrictions from the Software, Licensee Derivative Work, Documentation or any support material; (ii) not to provide use of the MagniComp Product in a computer service business, rental or commercial timesharing arrangement; (iii) not to develop methods to enable unauthorized parties to use MagniComp Product; and (iv) not to develop any product similiar to the Software for commercial or non-commercial distribution for a period of five (5) years from acceptance of this agreement.
5.2 Compliance with Laws. Licensee shall be solely responsible for complying with the laws and regulations applicable in any country, or political subdivision thereof, in which it engages in business in performing its responsibilities hereunder. Licensee will bear all expenses and costs related to compliance with such laws and regulations.
5.4 Proprietary Notices. Licensee must reproduce and include the copyright notice and any trademark, service mark, patent or other proprietary notices that appear on the original copy of any MagniComp Product or Documentation on any copies made by Licensee on any media.
5.5 Protection Against Unauthorized Use. MagniComp prevents unauthorized use of Software by employing Enabler Codes and Authorization Codes that enable the use of the Software. If Licensee modifies such enabler/authorization code scheme, it must use a scheme or method at least as effective to prevent unauthorized use of Software or Licensee Derivative Works.
7.1 Protection of Confidential Information. Each party will protect the other's Confidential Information from unauthorized dissemination and use the same degree of care that such party uses to protect its own like information, but in no event less than a reasonable degree of care. Neither party will disclose to third parties the other's Confidential Information without the prior written consent of the other party. Neither party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Notwithstanding the foregoing, either party may use or disclose Confidential Information to the extent such party is legally compelled to disclose such Confidential Information provided, however, that prior to any such compelled disclosure, the disclosing party will notify the non-disclosing party and will cooperate fully with the non-disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. The parties agree that any breach of this Section would cause irreparable harm to the disclosing party for which monetary damages would not be adequate and therefore, the parties agree that in the event of a breach of this Section 7.1, the disclosing party shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.
7.2 Non-disclosure of Source Code. In additional to the provisions of Section 7.1 above, Licensee acknowledges that the Source Code (and to the extent containing MagniComp trade secrets, the Licensee Derivative Works) constitutes a valuable asset of MagniComp and therefore agrees that only the following Licensee employees shall have access to the Source Code and the source code to the Licensee Derivative Works: those employees: (i) who have a need for such access to accomplish the purposes of the distribution rights and license grants specified in Section 2 above; and (ii) with whom Licensee has a legally enforceable obligation that precludes disclosure of third-party proprietary information and is otherwise sufficient to enable Licensee to comply with all the provisions of this Agreement. Licensee shall not grant any other individual or entity access to the Source Code.
7.3 Security. Licensee shall implement reasonable security measures to prevent unauthorized use or disclosure of Source Code. Licensee agrees to segregate all Source Code and Confidential Information from its own confidential information and from the confidential information of others in order to prevent commingling.
7.4 Notification of Employees. Each party agrees to take appropriate action by instruction, agreement or otherwise with its employees, agents and contractors allowed access to the Confidential Information to satisfy its obligations under this Section 7.
9.1 Trademarks. Neither party is granted any ownership in or license to the trademarks, marks, service marks or trade names, or good will associated with such marks or names (collectively, "Marks") of the other party, except as provided in Section 2.4. Neither party shall use the Marks or confusingly similar marks in connection with any goods or services other than the MagniComp Product, or in a manner that dilutes, disparages, or harms the reputation of the party owning such marks. Each party agrees that any goodwill arising from its use of the Marks shall inure to the benefit of the party owning such Mark who will be the sole and exclusive owner of such goodwill.
9.2 Use of Marks. Licensee shall include MagniComp's copyright notice as required herein. All advertising and other materials in which MagniComp's Marks are used shall be subject to the prior written approval of MagniComp. Where appropriate, MagniComp shall grant generic approval for such use. Whenever a party uses the Mark of the other, such party shall indicate that such Mark is the property of the other party.
9.3 Defense of Trademarks. Neither party will at any time contest, or assist others in contesting, the validity or enforceability of the Marks of the other party or other proprietary rights, or do, cause to be done, or tolerate any act or thing contesting or in any way impairing or tending to impair any said right, title, and interest of such party in such Marks or other proprietary rights.
10.1 Termination. MagniComp retains the right to terminate this agreement at any time for any cause with thirty (30) days written notice to Licensee.
10.2 Term. This Agreement is in effect so long as Licensee holds any copy of the Source Code on any Licensee computer or storage media either onsite or offsite.
10.3 Effects of Termination. Upon termination or expiration of this Agreement for any reason whatsoever, Licensee shall immediately: (i) cease all use of Product Source Code; (ii) make all reasonable efforst to destroy and/or remove all copies of Source Code from Licensee computers and storage media; and (iii) return all Software, Source Code, Documentation, Confidential Information, and the source code to all Licensee Derivative Works and all related materials and copies thereof to MagniComp. In addition to the foregoing, Licensee agrees that it shall not, following termination of this Agreement, act in any way to damage the reputation or goodwill of MagniComp or any Software, Licensee Derivative Work or other product.
10.4 No Harm Upon Termination. Except as otherwise expressly provided herein, upon the expiration or termination of this Agreement Licensee shall not be entitled to, and to the fullest extent permitted by law waives, any statutorily prescribed or other compensation, reimbursement or damages for loss of goodwill, clientele, prospective profits, investments or anticipated sales or commitments of any kind.
10.5 Survival. The following sections of this Agreement shall survive termination: Section 1 (Definitions); Section 3 (Ownership and Restrictions); Section 7 (Confidential Information); Section 9 (Trademarks and Servicemarks); Section 11 (Special Protections for Source Code); Section 12 (Warranty and Disclaimers); Section 13 (Limitation of Liability); Section 14 (Indemnification); Section 17 (Remedies); Section 18 (Notices); Section 19 (General Provisions).
11.1 Special Nature of Source Code. Licensee agrees and acknowledges that the Source Code is: (i) proprietary to MagniComp; (ii) is of significant value to MagniComp; (iii) is not publicly available; (iv) contains trade secrets of MagniComp; and (v) constitutes Confidential Information of MagniComp subject to the requirements of this Section 11. In addition to the requirements of Section 7, Licensee shall comply with the following restrictions on use of the Source Code and shall maintain the Source Code in accordance with the following security procedures.
11.2 Responsible Manager. Licensee shall designate a management-level Licensee employee (the "Responsible Manager") who shall have responsibility for preserving the security of the Source Code at all times.
11.3 Access. No Authorized Person shall have access to the Source Code unless and until: (i) they have been apprised of and acknowledges the confidential and proprietary nature of the Source Code; (ii) have been trained with respect to the procedures designed to preserve its confidentiality; (iii) and is subject to a binding and enforceable obligation neither to use such Source Code (other than for purposes expressly permitted by this Agreement) nor to disclose such Source Code to any person or entity other than a person similarly authorized to access the Source Code. Licensee at anytime may change the Authorized Persons.
11.4 Security for Physical Media. To the extent the Source Code is contained in physical media, Licensee shall maintain such Source Code in a room or locker in the Facility to which access may be obtained only through a key or computerized card-access security system and to which only the Authorized Persons shall have access. All such Source Code shall be marked with the restrictive legend "MAGNICOMP CONFIDENTIAL AND PROPRIETARY: FOR USE BY AUTHORIZED PERSONS ONLY." Before any physical storage media containing Source Code is released for reuse, it will be degaussed or completely overwritten. Source Code contained on optical disks shall be returned to MagniComp.
11.5 Security for Soft Media. To the extent the Source Code is stored ' electronically on an information processing system, such system shall meet the following requirements:
11.6 Records and Investigations. The Responsible Manager shall maintain a record of all persons who have access to the Source Code and the computer system shall maintain a record of each time a user accessed the Source Code and the user id of such user. Licensee shall record and investigate all unauthorized attempts to gain access to the Source Code and shall promptly notify MagniComp of any loss, theft, or unauthorized use or disclosure of the Source Code. Licensee shall make such records available to MagniComp at MagniComp's reasonable request.
11.7 Security Reviews. Licensee shall conduct periodic reviews to ensure compliance with the foregoing security requirements. MagniComp shall have the right to conduct a review to ensure compliance with the foregoing security restrictions, including an interview of the Responsible Manager and inspection the records maintained by Licensee pursuant to subsection 11.6 above, on three (3) Business Days written notice.
11.8 Activity Restrictions. Licensee shall cause each of its employees who have access to the Source Code to agree in writing: (i) to notify MagniComp if they engage in the development of any software which is in direct competition with the Software at any time during the five (5) years following the last such access, and (ii) to execute, prior to any such engagement, a confidentiality agreement in favor of MagniComp in form and substance similar to the confidentiality provisions of Section 7 hereof, including the restriction on the use of the Source Code and any Confidential Information.
11.9 Return of Source Code. Upon termination of this Agreement, Licensee shall immediately return to MagniComp all Source Code, in whatever form, including all copies, fragments, excerpts, and any materials containing Source Code, whether or not such Source Code has been intermingled with Licensee Derivative Works, or Licensee's own information or materials, and will certify to MagniComp that all forms of such Source Code have been returned.
12.1 Limited Warranty. Licensee warrants that the support services to be provided to End Users will be performed with the same degree of skill and professionalism as is demonstrated by like professionals performing services of a similar nature.
12.3 Warranty Disclaimer. MAGNICOMP MAKES NO WARRANTIES WITH RESPECT TO any Software, license or SERVICE AND DISCLAIMS ALL Statutory or IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, or arising from a course of dealing or usage of trade and any WARRANTIES OF NONINFRINGEMENT. MAGNICOMP DOES NOT WARRANT THAT THE Software WILL MEET any REQUIREMENTS or THAT THE OPERATION OF THE Software WILL BE UNINTERRUPTED OR ERROR FREE. CAMINOSOFT WILL HANDLE AND BE RESPONSIBLE FOR ALL WARRANTY RETURNS FROM ITS End-users or Resellers.
13.1 Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, MAGNICOMP WILL in no event BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT, OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY Indirect, special, INCIDENTAL OR CONSEQUENTIAL DAMAGES, however caused and whether or not advised in advance of the possibility of such damages; or (ii) damages for LOST profits or lost DATA; OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.
14.1 Indemnification by Licensee. Licensee shall defend any action brought against MagniComp, its officers, directors, agents and employees, and shall pay all costs, liabilities, damages and legal fees finally awarded against MagniComp in, or paid in settlement of, such action, to the extent such action is based on a third-party claim: (i) where Licensee's modification, use or distribution of the MagniComp Products is not in strict accordance with this Agreement; (ii) of any misrepresentation or any breach of any warranty, covenant or agreement on the part of Licensee; or (iii) such third party claim or action against MagniComp is for injuries or damage to persons or property caused or claimed to have been caused by the negligent acts or omissions of Licensee personnel while in the course of performing work under this Agreement; (iv) such claim or proceeding relates to any warranty, representation, liability limit, remedy, indemnity, or other obligation stated by Licensee in its license agreement or other agreement between Licensee and such third party, which has terms that differ from the provisions set forth in Exhibit A
14.4 Disclaimer. THE FOREGOING PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF MAGNICOMP WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCT and IS IN LIEU OF ANY WARRANTIES OF NONINFRINGEMENT.
14.5 Exceptions. The foregoing indemnity obligation of MagniComp does not apply with respect to MagniComp Product or portions or components thereof: (i) not supplied by MagniComp, (ii) made in whole or in part in accordance to Licensee specifications or that constitute a Licensee Derivative Work, (iii) which are modified after shipment by MagniComp, if the alleged infringement relates to such modification, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, or (v) where Licensee continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement.
Export and Import Controls. Licensee acknowledges that the Software and the technical data received from MagniComp in accordance with the terms hereunder may be subject to United States export and import controls, and in the performance of its obligations, Licensee shall at all times strictly comply with all laws, regulations and orders, and agrees to commit no act which, directly or indirectly, would violate any United States or other countries', regulations or orders.
16.1 Government Restricted Rights. This provision applies to MagniComp Product licensed directly or indirectly to or on behalf of any government by Licensee or a Reseller. The Software or Licensee Derivative Work is a commercial software product, licensed on the open market at market prices, and was developed entirely at private expense and without the use of any government funds. Any use modification, reproduction, release, performance, display, or disclosure of the Software or Licensee Derivative Work by any government shall be governed solely by the terms specified in Exhibit A and shall be prohibited except to the extent expressly permitted thereto, and no license to the Software or Licensee Derivative Work is granted to any government requiring different terms.
16.2 U.S. Government Users. If the MagniComp Product is acquired directly or indirectly by or on behalf of the United States Government, then use, duplication, or disclosure is subject to the restrictions as set forth in the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 subparagraph (c)(1)(ii), or the Commercial Computer Software - Restricted Rights at CFR 52.227-19, subparagraphs (c)(1) and (2), as applicable. Manufacturer is MagniComp, Mountain View, California.17.1 Governing Law. This Agreement shall be governed by the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents, without regard to the principles of conflict of laws or the United Nations Convention on Contracts for the International Sale of Goods.
17.2 Jurisdiction. The U.S. federal and state courts of the State of California located in Santa Clara County shall have sole and exclusive jurisdiction and venue to adjudicate over any actions relating to the subject matter of this Agreement. The parties hereto consent to the exclusive jurisdiction of the courts specified above, and expressly waive any objection to the jurisdiction, venue, or convenience of such courts.
17.3 Injunctive Relief. The parties agree that a breach of this Agreement adversely affecting MagniComp's intellectual property rights in the MagniComp Products or Documentation may cause irreparable injury to MagniComp for which monetary damages may not be an adequate remedy and MagniComp shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.
All notices under this Agreement are to be delivered by (i) depositing the notice in the mail, using registered mail, return receipt requested, addressed to the address below or to any other address as the party may designate by providing notice, (ii) telecopying the notice by using the telephone number set forth below or any other telephone number as the party may designate by providing notice, (iii) overnight delivery service addressed to the address below or to any other address as the party may designate by providing notice, or (iv) hand delivery to the individual designated below or to any other individual as the party may designate by providing notice. The notice shall be deemed delivered (i) if by registered mail, four (4) days after the notice's deposit in the mail, (ii) if by telecopy, on the date the notice is delivered, (iii) if by overnight delivery service, on the day of delivery, and (iv) if by hand delivery, on the date of hand delivery.
If to MagniComp:
MagniComp19.1 Assignment. Neither this Agreement nor any rights or obligations hereunder, in whole or in part, shall be assignable or otherwise transferable by Licensee, except that In the event of a merger, acquisition, consolidation, reorganization, or sale of substantially all of its assets or of its business Licensee, with the prior written consent of MagniComp which shall not be unreasonably withheld, may assign its rights and transfer its obligations hereunder to the surviving corporation. MagniComp may assign its rights and transfer its obligations hereunder provided Licensee is previously notified in writing of such assignment.
19.2 Complete Agreement. The parties agree that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the parties relating to this Agreement.
19.3 Amendment. This Agreement may not be modified, altered or amended except by written instrument duly executed by both parties.
19.4 Waiver. The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
19.5 Severability. If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
19.7 Read and Understood. Each party acknowledges that it has read and
understands this Agreement and agrees to be bound by its terms.