Independent Software Vendor (ISV) License Agreement
This Independent Software Vendor License Agreement (“AGREEMENT) is made and entered into by you (“LICENSEE”), the person, business or other entity which will be bound by and subject to the terms and conditions set forth in this AGREEMENT, and Dartcom Incorporated ("DART"), the author of SOURCE CODE (as defined below), which is licensing such SOURCE CODE for LICENSEE to use under the following terms and conditions.
- DART has sufficient right, interest and or ownership to such SOURCE CODE as to execute the terms of this AGREEMENT.
- LICENSEE desires to license rights to SOURCE CODE, in order to create DERIVATIVE WORKS for use by LICENSEE or THIRD PARTIES.
- Subject to the terms and conditions set forth in this AGREEMENT, DART is willing to license to LICENSEE certain rights to the SOURCE CODE
NOW THEREFORE, in consideration of the mutual covenants, promises, and obligations contained herein, and other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, DART and LICENSEE hereby agree to the following:
As used in this AGREEMENT, the following definitions shall apply:
||"SOURCE CODE" shall mean the uncompiled code used to build the PowerTCP, PowerSNMP or PowerWEB software product and version library specified in the signature block below, excluding proprietary license enforcement source code.
||“DERIVATIVE WORKS” shall mean a work that is based upon one or more preexisting works, such as revision, modification, translation (including compilation or recapitulation by computer), abridgment, condensation, expansion or any other form in which such a preexisting work may be recast, transformed, or adapted, and that, if prepared without authorization by the owner of the preexisting work, would constitute copyright infringement. As used in this AGREEMENT, DERIVATIVE WORKS applies to LICENSEE’S works that incorporate SOURCE CODE.
||“DEVELOPER LICENSE” shall mean a single SOFTWARE license that may be installed on up to two computers for LICENSEES personal use only. If the LICENSEE is an organization, it may designate one (1) individual within the organization, the right to use the SOFTWARE in this manner.
||“CONFIDENTIAL INFORMATION” shall mean , with respect to either party, all confidential or proprietary information and materials, patentable or otherwise, in any form (written, oral, photographic, magnetic, or otherwise) which is disclosed by or on behalf of such party to the other party.
||“EFFECTIVE DATE” shall mean the date on which this AGREEMENT is executed. Execution of this AGREEMENT is contingent upon DARTS acceptance of the signed AGREEMENT from LICENSEE and receipt of the first annual payment or promise of payment.
||“ANNIVERSARY DATE” shall mean the date on which the lease is renewed, and payment is due, for each year subsequent to the EFFECTIVE DATE.
||“LICENSE TERM” shall mean a period of time starting on the EFFECTIVE DATE and continuing until terminated, pursuant to the terms of this AGREEMENT.
||“ANNUAL TERM” shall mean a period of twelve (12) months beginning on the EFFECTIVE DATE or any subsequent ANNIVERSARY DATE.
||“SOURCE CODE UPDATE” shall mean replacement SOURCE CODE, delivered via electronic means that may be requested by LICENSEE for software maintenance purposes.
||“SUPPORTIVE SERVICES” shall mean support and maintenance services for SOURCE CODE provided for in this AGREEMENT.
||“THIRD PARTY” shall mean any person or entity who, or which, is neither a party to this AGREEMENT nor an affiliate of a party.
2 GRANT OF LICENSE
||DART hereby grants to LICENSEE, and LICENSEE hereby accepts, a renewable, non-exclusive right and license to use the SOURCE CODE and distribute DERIVATIVE WORKS during the LICENSE TERM subject to the terms and provisions of this AGREEMENT. After the first year customer can exercise a “Buy-Out” option to extend this license in perpetuity.
||This AGREEMENT is supplemental to the applicable product(s) DEVELOPER LICENSE(s). LICENSEE is required to purchase, or to already have purchased a DEVELOPER LICENSE for each developer using SOURCE CODE under the terms of the End User License Agreement (EULA).
||Non-compete restriction. Under no circumstances may the SOURCE CODE be used, in whole or in part, as the basis for creating a product that provides the same, or substantially the same, functionality as any DART product.
||SOURCE CODE distribution and sub-licensing. LICENSEE agrees and understands that this contract is an agreement to lease SOURCE CODE. All SOURCE CODE is copyright protected and DART does not relinquish its rights and/or ownership of SOURCE CODE. Licensee may not sub-license SOURCE CODE to any THIRD PARTY and will take appropriate measures to protect SOURCE CODE from unlawful access by THIRD PARTIES. Any THIRD PARTY requiring SOURCE CODE must license SOURCE CODE directly from DART.
3 DELIVERY OF SOURCE CODE
SOURCE CODE shall be delivered to LICENSEE as soon as practical on or after the EFFECTIVE DATE.
4 SOURCE CODE UPDATES
LICENSEE can receive SOURCE CODE UPDATES during the LICENSE TERM upon request.
5 TERM AND RENEWAL
||Initial Term. The initial term of this AGREEMENT shall be one (1) year, commencing on the EFFECTIVE DATE (the "Initial Term").
||Renewal. This document constitutes a contract to lease SOURCE CODE from DART and shall be extended for one (1) year at the conclusion of each ANNUAL TERM unless (i) LICENSEE executes the Buy-Out option or (ii) AGREEMENT is terminated by either party.
||LICENSEE may terminate this license at any time by notifying DART in writing at least thirty (30) days prior to the ANNIVERSARY DATE and completing certification requirements in accordance with paragraph 6.2. Failure to provide such notices will result in license fees being due for another ANNUAL TERM.
||Termination Certification Requirements. Upon termination, LICENSEE agrees to cease using SOURCE CODE and distributing DERIVATIVE WORKS created from SOURCE CODE. LICENSEE shall immediately remove and destroy any and all copies of SOURCE CODE and certify to DART that it has complied with this requirement. Certification must be submitted by LICENSEE, and received by DART, within (10) days of the end of the LICENSE TERM.
||DART may terminate this AGREEMENT in the event LICENSEE (a) fails to make, when due, any license fee payment or other payment required under this AGREEMENT and fails to correct such non-payment within 30 days of notification from DART of such failure or (b) commits a material breach of any of its obligations under the terms of this AGREEMENT, which breach is not remedied within 30 days after notice thereof by DART to LICENSEE.
||Upon termination of this AGREEMENT, LICENSEE shall pay DART all fees due through to the end of the LICENSE TERM. Should LICENSEE fail to comply with the certification requirements stated in this AGREEMENT, additional fees will be assessed on a pro rata basis (of the annual license fee) and billed monthly.
||The termination of this AGREEMENT shall not extinguish any rights or obligations of the parties relating to protection of CONFIDENTIAL INFORMATION.
||Upon termination of this AGREEMENT, any and all DERIVATIVE WORKS distributed by LICENSEE to others during the LICENSE TERM will survive the termination of this AGREEMENT.
||In the event that DART ceases business operations and no surviving entity owns the rights to the SOURCE CODE, then LICENSEE may retain and continue to use the SOURCE CODE under the terms outlined in this AGREEMENT.
As consideration to DART for the license of SOURCE CODE, LICENSEE agrees to make annual lease payments or to exercise the Buy-Out option. All fees and charges are exclusive of tax. DART shall have no obligation under this AGREEMENT when fees are past due.
||Annual Payments. An annual payment, at the same rate as the first year, extends this license for each ANNUAL TERM.
||Buy-Out Option. A single buy-out payment can be made, for thrice (3 times) the annual licensing fee, to extend this license in perpetuity.
||Fees are not refundable
All SOURCE CODE is protected by United States copyright laws and international treaty provisions.
9 ACKNOWLEDGMENT OF DART’S OWNERSHIP RIGHTS
LICENSEE acknowledges that it obtains no ownership rights of the SOURCE CODE. LICENSEE agrees to take all reasonable steps to ensure that the provisions of this AGREEMENT are not violated by LICENSEE or any person under the control or in the service of LICENSEE. Breach of this provision shall be grounds for immediate termination of this AGREEMENT without further obligation to LICENSEE, at DARTS option.
10 EXPORT RESTRICTIONS
LICENSEE agrees that neither LICENSEE nor their customers intend to or will, directly or indirectly, export or transmit (i) the SOURCE CODE or (ii) any DERIVATIVE WORKS or service that uses the SOURCE CODE, 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 government entity as may have jurisdiction over such export or transmission.
LICENSEE may not transfer, rent, sublease or lend SOURCE CODE or delegate its obligations under this AGREEMENT. Any attempted sale, pledge, assignment, sublicense or other transfer in violation hereof shall be void and of no force or effect.
12 GENERAL PROVISIONS
||Applicable Law. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision (of that or any other jurisdiction) that would cause the application of laws of any jurisdiction other than the state of New York. The courts of Oneida Count, New York, USA shall have exclusive jurisdiction over any claim, action or proceeding relating directly or indirectly to this AGREEMENT. Should you have any questions concerning this AGREEMENT, or if you desire to contact DART for any reason, please call 315-339-8040 or write to Dartcom Incorporated; 1109 Floyd Avenue, Rome, New York 13440.
||Modification. This AGREEMENT may not be modified or amended except by a writing which is signed by authorized representatives of each of the parties.
||No Waiver. The failure of either party to exercise any right or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other term of the AGREEMENT.
||Force Majeure. Neither party shall be deemed in default of this AGREEMENT to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, such as fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the control of such party (“Force Majeure”) provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to remedy the delay. In the event of such Force Majeure, the time for performance or remedy shall be extended for a period equal to the duration of the Force Majeure but not in excess of three (3) months.
||Entire Agreement. This AGREEMENT constitutes the sole and entire AGREEMENT of the parties with respect to the subject matter hereof and supersedes any prior oral or written promises or agreements. There are no promises, covenants or undertakings other than those expressly set forth in this AGREEMENT.
||Equitable Remedies. The parties recognize that monetary damages may not be an adequate remedy for any material breach of any obligation hereunder involving intellectual property, CONFIDENTIAL INFORMATION or use of SOURCE CODE beyond the scope of the license granted by this AGREEMENT. The parties therefore agree that in addition to any other remedies available hereunder, by law or otherwise, each party shall be entitled to an injunction against any such continued breach of such obligations.
||Late Fees, Collection Fees, Costs and Attorneys Fees. A late payment charge of 1.5% per month, compounded monthly, may apply to any payment due from LICENSEE that is in arrears for a period exceeding 30 days. Any collection fees incurred shall be the sole responsibility of the LICENSEE. In any legal action or arbitration proceeding brought by either party on account of the other party’s breach, the party found to be at fault shall be liable for all costs of litigation or arbitration, including reasonable attorneys’ fees.
||Protection of CONFIDENTIAL INFORMATION. Each party agrees that all CONFIDENTIAL INFORMATION disclosed in the course of this AGREEMENT: (i) shall be maintained in confidence by both parties and (ii) shall not be disclosed by the receiving party to any THIRD PARTY who is not an employee, agent or consultant of, or an advisor to, the party or its affiliate(s), without the prior written consent of the disclosing party. Each party shall have an appropriate agreement with each of its employees, agents, consultants and contractors having access to the CONFIDENTIAL INFORMATION sufficient to enable it to comply with the terms of this section. Each party agrees to protect the CONFIDENTIAL INFORMATION received in the course of this AGREEMENT with the same standard of care and procedures which it uses to protect its own trade secrets and confidential or proprietary information of like importance and, in any event, shall adopt or maintain procedures reasonably calculated under the circumstances to protect such CONFIDENTIAL INFORMATION as required herein.
||Exceptions. The obligations of protection and non-use set forth in the CONFIDENTIALITY section of this AGREEMENT shall not apply to any CONFIDENTIAL INFORMATION which (i) becomes published, known or otherwise part of the public domain through no fault or omission on the part of the applicable receiving party or its affiliate(s), (ii) is required to be disclosed under applicable laws or regulation or an order by a court or other regulatory body having competent jurisdiction; provided, however, that except where impracticable, the party required to disclose CONFIDENTIAL INFORMATION shall give the other party reasonable advance notice of such disclosure requirement (which shall include a copy of any applicable subpoena or order) and shall cooperate with the other party to oppose, limit or secure confidential treatment for such required disclosure. In the event of any such required disclosure, a party shall disclose only that portion of the CONFIDENTIAL INFORMATION that is legally required to be disclosed.
||Term of Obligation. The obligations under the CONFIDENTIALITY section of this AGREEMENT shall continue for a period of five (5) years, after the date of termination of this AGREEMENT, with respect to any particular item of CONFIDENTIAL INFORMATION.
14 REPRESENTATION AND WARRANTEES
||DART hereby warrants that all copyright(s), patents, trade secrets, trademarks and other intellectual and property rights in the SOURCE CODE either are now and shall remain the valuable property of DART, or has been granted sufficient rights to those claims in the SOURCE CODE as to afford DART all necessary authority to execute this AGREEMENT.
||DART further warrants that SOURCE CODE does not and will not infringe or misappropriate the intellectual property rights of any THIRD PARTY
NO OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DART AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTEIS, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE SOURCE CODE. LICENSEE ACKNOWLEDGES THAT SOURCE CODE IS LICENSED “AS IS” AND DART DOES NOT PROVIDE ANY TECHNICAL SUPPORT FOR SOURCE CODE.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DART OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOURCE CODE, EVEN IF DART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
The undersigned, hereby acknowledges that they are duly authorized to bind the LICENSEE contractually and have read, understand and agree to the terms and conditions as outlined in this AGREEMENT.
|Annual License Fee:
|Authorized Signature & Title:
|Accepted by DART on(effective date):