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Licence Argreement for MicrolightJava-3D Full Distibution
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PARTIES: (1) 'Bit-7', Bit-7 Software Technology Limited whose registered
office is
33 The Causeway,
Coalpit Heath,
South Gloucestershire
BS36 2PD
United Kingdom.
(2) 'The Licensee', <name> <address>
Date: The date on which the Licencee aquires the Software.
1. Definition
1.1 The 'Software' shall mean all computer programs, documentation, know-how,
and services provided under the Agreement as supplied by Bit-7 to the Licensee
commonly called 'MicrolightJava-3D Full Distribution'.
1.2 The 'Intellectual Property Rights' shall mean patents, copyrights, design
copyright (whether registered or unregistered) rights in the nature of
copyright, know-how, confidential information, trade marks, service marks,
lending rights, hiring rights and all applications for any of the foregoing and
the right to apply therefore and all other intellectual property rights of any
nature whatsoever wheresoever such Intellectual Property Rights may subsisting
throughout the universe and whether now known or in the future created or
devised.
1.3 'Confidential Information' shall mean any information designated by Bit-7
as confidential.
1.4 The 'End Product' shall mean a single application developed by the
Licensee using the Software. For development purposes the End Product
shall be called <app-name>. The End Product shall be recognisable from the
description hereunder.
<description>
1.5 The 'Initial Distribution Date' shall be the date on which the End Product
is first distributed.
2. Interpretation
2.1 This license shall be governed by and constructed according to the Laws of
England.
2.2 Words importing the singular include the plural and vice versa and words
importing any gender shall include the others.
2.3 A reference to a person shall include corporations.
2.4 Words importing singular number shall include plural number and vice versa.
2.5 Words importing a gender shall include all others.
2.6 A reference in this Agreement to all sections of a statute includes all
amendments to that statute.
2.7 Except for the purpose of identification, headings and underlinings have
been inserted in this Agreement for the purpose of guidance only and shall not
be part of this Agreement.
2.8 expressions referring to writing shall, unless the contrary intention
appears be construed as references to printing, facsimile, lithograph,
photocopy and other modes of representing or reproducing words in visible form.
2.9 Use of the Software implies full and complete acceptance of the terms of
the Agreement.
2.10 Schedule A, the Fee Structure Description shall form part of the
Agreement.
3. Protection of Intellectual Property Rights
3.1 The Licensee acknowledges that the Intellectual Property provided to the
Licensee by Bit-7 pursuant to this Agreement at the date of delivery thereof
either belongs to or is licensed to Bit-7.
3.2 The Licensee further agrees that it will not at any time knowingly do or
cause to be done any act or thing impairing or tending to impair the right,
title or interest of Bit-7 to any Intellectual Property provided for the use
of the Licensee in the period of this Agreement or thereafter.
3.3 The Licensee agrees that except as expressly provided by Bit-7 under this
Agreement, the Licensee's use of Intellectual Property provided by Bit-7
pursuant to this Agreement shall not create in the Licensee any right, title
or interest therein.
3.4 The Licensee shall not disclose or purport to transfer any Intellectual
Property to any third party.
3.5 The Licensee agrees to treat as confidential all information received from
Bit-7 regarding its clients, financial affairs, present or future business
plans and products, not generally disclosed to the public, which the Licensee
may learn in the course of or incidental to this Agreement whether or not it is
in writing, and in addition to any Confidential Information. Without limiting
the generality of the foregoing the Confidential Information shall include
details of any software, its source code or any flow charts, diagrams or data
relating thereto, or its method of operation, access to which may be provided
pursuant to this agreement.
3.6 The Licensee shall not disclose to any person, other than those employees
of the Licensee who need to have that information in order to carry out their
duties on behalf of the Licensee, the whole or part of any Confidential
Information, nor use any part of the Confidential Information for its own
purposes, or for the benefit of any third party, except as expressly authorized
by this Agreement, or pursuant to any requirement of law, without the prior
written consent of Bit-7.
3.7 In addition, the Licensee shall, during the term of this Agreement and
thereafter procure that its officers, employees and agents observe and maintain
complete confidentiality with regard to all aspects of the Confidential
Information, as if personally bound by the provisions of this Clause.
3.8 Bit-7 shall maintain each and every part of the Licensee's confidential
information, data and results obtained by it in performance of its obligations
under this Agreement in strict confidence of the Licensee, and Bit-7 will take
all action] considered necessary with respect to the use, copying, duplication,
access, security and protection of such information, data and results or any
part thereof to satisfy obligations under this sub-Clause.
3.9 Neither party hereto shall be required to keep confidential any information
which is or becomes publicly available, is already in the recipients possession
at the time of receipt of this Agreement, is independently developed by the
recipient outside the scope of this agreement, or is rightfully obtained from
third parties. In addition Bit-7 shall not be required to keep
confidential any ideas, concepts, know-how, or techniques relating to the
performance of its obligations hereunder submitted to Bit-7 by the
Licensee or any person on the Licensee's behalf or developed during the course
of this Agreement by Bit-7's personnel or jointly by Bit-7
personnel and Licensee personnel.
3.10 The Software is owned by Bit-7 or its suppliers or licensors and is
protected by copyright laws and international treaty provisions. Therefore,
the Licensee may not use, copy, or distribute the Software without
authorization. The Agreement grants the Licensee the right to make copies of
the Software as necessary in the persuance of the terms on the Agreement.
4. Termination
4.1 Either party may hereto terminate this Agreement forthwith upon the
happening of any of the following events:
a. the other party fails to observe or perform any provisions of this
Agreement and fails to remedy such breach within thirty (30) days after written
notice thereof has been given to the party in breach.
b. the other commits any act of bankruptcy or insolvency or a petition is
presented for the bankruptcy or winding up of the other or a resolution is
passed for the winding up of the other otherwise than for the purposes of
amalgamation or reconstruction.
c. the other enters a compromise or arrangement with creditors or a receiver
or official manager of the other or of any to its assets is appointed; or
d. in the event that any party is a person or partnership, that person or any
member of that partnership is declared to be of unsound mind or otherwise
incompetent to carry out his or her own affairs.
4.2 In the event that the Agreement is terminated then
a. neither party shall have any liability to the other by virtue of such
termination:
b. the Licensee shall do all such things and execute all such documents as
Bit-7 or its attorneys may reasonably request in order to record or give effect
to such terminations: and
c. each party shall within seven (7) days of the effective date of termination
deliver to the other all documents and other things (including microfiche
magnetic tape, disks or other storage media) embodying any confidential
information obtained from the other during the term hereof or before this
Agreement and relating thereto, or, in the event that any such information is
embodied in valuable property belonging to the receiving party thereof, the
receiving party shall certify its obliteration by erasure or other appropriate
means
5. Warranty
5.1 Service to be provided by Bit-7 shall be provided in a proper and
workmanlike manner.
5.2 Except in relation to events described below, by virtue of performing its
obligations under this Agreement, if Bit-7 is held by a Court to have infringed
a third party's patent, copyright, registered design, trade mark or trade
secret rights or if Bit-7 is advised by legal counsel that the performance of
its obligations hereunder is likely to constitute such an infringement, then
Bit-7 shall promptly and at its own expense:
(a) procure for the Licensee the right to continue use of any infringing work;
(b) modify the Services (without materially detracting from overall
performance) so as to avoid the infringement or
(c) if paragraphs (a) or (b) cannot be accomplished on reasonable terms, at the
option of Bit-7, remove any infringing work from the possession of the Licensee
or erase or provide access to the work and refund the fees previously paid in
relation to that work.
5.3 The Licensee shall indemnify and save harmless Bit-7 against any expense,
judgement, or loss, or infringement (including legal costs and disbursements in
defending or settling the claim giving rise to same) of any patent, copyright,
design right, trade secret or trade mark which results from Bit-7's use or
compliance with any design, specification, direction or instruction of the
Licensee or which results in any claim or demand by any person arising out of
the provision of the Services.
5.4 This Clause states the entire liability of Bit-7 with respect to the
infringement or alleged infringement of any design right, trade secret, trade
mark, patent or copyright in the provision of the performance by Bit-7 of its
obligations hereunder.
5.5 The Licensee shall indemnify and save harmless Bit-7 from and against all
actions, suits, claims, demands, verdicts, judgements, costs and expenses,
legal and otherwise; which may arise as a result of or incidental to the
performance by Bit-7 or its obligations hereunder, or any transactions between
Bit-7 and a customer of the Licensee or any other third party either directly
or indirectly carried out or incidental to this Agreement.
5.6 Except as otherwise expressly provided herein, all warranties,
representations, promises, conditions or statements regarding the Services to
be supplied or performed hereunder, whether express or implied and whether
statutory or otherwise including, without limiting the generality of the
foregoing, warranties representations, promises, conditions or statements as to
the merchantability, suitability, fitness for any purpose, profitability or any
other attributes or consequences of or benefits to be obtained from or in the
course of the performance by Bit-7 of its obligations hereunder, except as
expressly set out herein or in any attachment hereto, are expressly excluded.
5.7 The Licensee assumes exclusive responsibility for the consequences of any
properly executed instructions it may give Bit-7.
5.8 The Licensee agrees and declares for the benefit of Bit-7 that it has
relied upon the Licensee's own skill and judgement in entering into this
Agreement, and has not relied on any statement or representation given by any
person on behalf of Bit-7.
5.9 In the event of any breach of any of the terms of this Agreement, the
liability of Bit-7 as a result thereof shall be and is hereby limited to an
amount which shall not exceed the total amount paid by the Licensee hereunder
to the date of such breach.
5.10 In no event shall Bit-7 be liable to the Licensee for special, incidental
or consequential loss or damage or for any indirect loss or damage including,
without any limitations to the foregoing, exemplary or punitive damages or
damage to personal property.
5.11 Subject to this clause all conditions and warranties which wold or might
otherwise be implied in this Agreement are hereby excluded and negated to the
extent permitted by law and this is acknowledged by the Licensee.
5.12 The Software is provided 'AS-IS', without warranty of any kind, either
expressed or implied. The entire risk as to the performance of the programs is
with the Licensee. Bit-7 does not warrant that the operation of the programs
will be uninterrupted or error-free. Bit-7 assumes no responsibility or
liability of any kind for errors in the programs or documentation, of/for the
consequences of any such errors.
6. Terms to prevail
6.1 In the event of any inconsistency between the terms of this Agreement and
the provisions or any purchase order, acknowledgement or other documentation of
the Licensee, the terms of this Agreement shall prevail.
6.2 In the event that this Agreement is translated into any language other than
English, then in the resolution of any ambiguity or difference between the
English version and such translation the English version will prevail.
7. Force Majeur
7.1 Notwithstanding any other provision in this Agreement, no default or delay
or failure to perform on the part of either party shall be considered a breach
of this Agreement if such default, delay or failure to perform is shown to be
due to causes beyond the control of the party charged with such default
including but not limited to causes such as strikes, lock-outs or other labour
disputes, riots, civil disturbance, actions or inaction of governmental
authorities or suppliers, epidemics, wars, embargoes, storms, floods, fires,
earthquakes, acts of God or the public enemy, computer down time, nuclear
disasters or default of a common carrier ('the Force Majeur Event')
7.2 Upon occurrence of the Force Majeur Event, the party seeking to reply on
same shall not be entitled to do so unless and until it serves notice on the
other specifying the event relied upon and specifying a period during which the
suspension of its obligations under this Agreement will be sought (not to
exceed sixty(60) days) and thereupon the time for performance required by both
parties under this Agreement shall be extended for such period during which
performance of the party giving notice is prevented by the Force Majeur Event.
7.3 In the further event that the Force majeur Event persists at the end of
such notice period, or a further such event supervenes whereby the same party
alleges it is prevented from performing its obligations (or any of them)
hereunder, the party seeking to reply on same shall serve a further notice on
the other party as required by this Clause, but the party receiving same shall
be entitled thereupon to terminate this Agreement forthwith by the giving of
notice terminating this Agreement, whereupon the parties shall negotiate in
good faith as to the consequences of such termination, including the return of
property delivered but not paid for.
8. Nature of the Agreement
8.1 The Agreement constitutes the entire agreement between the parties
regarding the subject matter hereof, and supercedes and replaces all
agreements, arrangements and understandings relating to the subject matter
hereof, whether reduced to writing or not, that may have preceded this
Agreement. The Licensee acknowledges that no warranties or representations
have been given by Bit-7 or any person on behalf of Bit-7, or relied upon by
the Licensee in entering into this Agreement, nor shall any be implied unless
and except that they are expressly contained in this Agreement.
8.2 If any provision of this Agreement should be held to be invalid in any way
or unenforceable, the remaining terms and provisions of this Agreement shall
remain in full force and effect and such invalid, illegal or unenforceable
terms or provision shall be deemed not to be part of this Agreement.
8.3 No waiver by either party whether express or implied of any provisions of
this Agreement or of any breach or default of either party shall constitute a
continuing waiver or waiver of any other provision of this Agreement unless
made in writing and signed by the party against whom the waiver would otherwise
be enforced.
8.4 Any notice required or permitted by this Agreement shall be in writing and
shall be deemed given to the intended party where copies are delivered
personally or by prepaid mail, telex, facsimile transmission or electronic mail
to the party or, where such a party is a corporation, to a director or
secretary of the company, in the case of mail seven (7) days after the date of
posting, in the case of personal delivery on the date of such delivery, or in
the case of other methods one (1) day after the date of transmission, at the
mail address or electronic address or facsimile or telex number noted on the
front page of this Agreement. Either party may change its address or numbers
by a written notice to the other party in a manner specified by this Clause.
8.5 The benefits and obligations of this Agreement shall be freely assignable
by Bit-7 to any related corporation or individual provided that notice of such
assignment is given to the Licensee and the assignee accepts all the
responsibilities and duties to the Licensee hereunder. The benefits and
obligations of this Agreement shall not be assignable by the Licensee without
prior written consent of Bit-7, which shall not be unreasonably refused in the
case of a substantial assignee capable of taking the financial and other
obligations of Bit-7 hereunder.
9. Use and distrubution of the Software
9.1 The Agreement grants the Licensee the right to use the Software to develop
end-user software applications which incorperate the Software in whole or in
part.
9.2 The Agreement grants the Licensee the right to distribute the End Product
by any means and for any fee and to authorise a third party to distribute the
End Product on the same terms.
9.3 The Licensee may not reverse engineer, decompile or disassemble the
Software, except to the extent the foregoing restriction is expressly
prohibited by applicable law.
9.4 The Licensee may not distibute any part of the Software in an End Product
that expressly enables a third party to use the Software to develop further
applications.
9.5 The Royalty Share % Of Gross shall mean the percentage of the total
price charged to end users for the End Product and of any charge made to a
third party who may not be the end user for example a publisher or content
aggregator for the End Product. The Royalty Value shall mean the monetary
value of the Royality Share % Of Gross calculated for each copy of the End
Product distributed.
9.6 In any case where the Royalty Value is less than Euro 0.1 the royalty
payment to Bit-7 shall be calculated as if the Royaly Value is Euro 0.1.
9.7 Distribution of the End Product is subject to an initial payment and
payment of the Royalty Value to Bit-7 for each copy of the End Product
distributed as described in Schedule A. The fee structure applicable to the
Argreement is denoted as "<structure-name>" in Schedule A.
9.8 The initial payment shall be made to Bit-7 before the Software is
transferred to the Licensee.
9.9 When the Royalty Share % Of Gross is not 0% the Licensee shall notify Bit-7
of the Initial Distribution Date within thirty (30) days of the Initial
Distribution Date.
9.10 When the Royalty Share % Of Gorss is not 0% following the Initial
Distribution Date royalty fees shall be calculated bi-monthly at month end
(i.e. 28th February, 30th April, 30th June, 31st August, 31st October, 31st
December) and an account rendered within one month thereafter. The account
shall state the number of copies of the End Product distibuted and the Royalty
Value associated with each.
9.11 Payment shall be made to Bit-7 within twenty eight (28) days of the
bi-monthly account being rendered.
9.12 If payment to Bit-7 is not made as described in the Agreement the
Licensee shall immediately cease to distribute the End Product and pay
all outstanding fees to Bit-7 before resuming distibution.
Schedule A The Fee Structure Description
| Initial payment | Royalty Share %
Structure name | (Euros) | Of Gross
----------------+-----------------+-----------------
Royalty free | 5000 | 0%
Low royalty | 2500 | 5%
Low upfront | 1000 | 8%
Royalty only | 50 | 10%
The Agreement is copyright 2003 Bit-7 Software Technology Limited.
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