License Agreement - Thunderstone Software Expansion Programs International Inc. and eBay Inc.
LICENSE AGREEMENT
THUNDERSTONE SOFTWARE
EXPANSION PROGRAMS INTERNATIONAL, INC. (EPI)
LICENSING AGREEMENT FOR
TEXIS, VORTEX WEBSCRIPT BRIDGE, METAMORPH, 3DB,
METAMORPH API, 3DB API, NETWORK API, BROWSER API,
ITS-WRITER, METABOOK, NETWORK CODE GENERATOR, AND
POSTSCRIPT VIEWER SOFTWARE UNDER ALL PLATFORMS
Carefully read all the terms and conditions of this agreement. If you do not
agree to these terms and conditions, return through registered mail or other
secured route the unused media and accompanying documentation to the place of
purchase.
The software and accompanying documentation is protected by United States
Copyright Law (Title 17 U.S. Code) and applicable International Codes and
Covenants.
Installation of this software constitutes acceptance of the Licensing Agreement
terms.
SECTION 1: DEFINITIONS
For the purpose of this Software Program License Agreement the following are
defined terms:
1. The term "Licensed Program" shall mean a licensed information
processing program or programs consisting of a series of instructions
or statements which is machine readable.
2. The term "Licensed Materials" shall mean any materials related to the
Licensed Program and provided for use in connection with the Licensed
Program.
3. The term "Licensed Program and Materials" shall mean both the Licensed
Program and Licensed Materials as defined above.
4. The term "enhancements" shall mean any program, any part thereof, or
any materials not included in the Licensed Program and Materials at
the time of execution of this agreement that is related to the
Licensed Program and Materials.
5. The term "use" shall include copying any portion of the Licensed
Program or Licensed Materials into a computer or transmitting them to
a computer for processing of the instructions or statements contained
in the Licensed Program or Materials.
6. The terms "you", "your", and "client" shall mean Buyer and/or
Licensee; "EPI" shall mean the Licensor; i.e., Expansion Programs
International, Inc., also known as Thunderstone, an Ohio software
company.
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7. The term "media" shall mean any tape, disk, diskette, CD-rom or
electronic delivery method used to install the Licensed Programs(s).
SECTION 2: LICENSE GRANT
Subject to the terms and conditions of this Agreement, EPI agrees to grant to
you a non-exclusive license to use the Licensed Program(s) at your location or
at any other location which may replace it.
You shall have the right to use the Licensed Program and materials solely for
your own internal operation in the location designated in this Agreement, or in
such other location as you may from time to time designate, provided that the
intent of this Agreement is not in violation. You do have the right to
individually access the Program from anywhere resident within the designated
location.
Your rights under this Agreement to the Licensed Program and Materials shall not
be assigned, licensed or otherwise transferred voluntarily, by operation of law,
or otherwise, except to a purchaser of substantially all of your outstanding
capital stock or assets, without the prior written approval of EPI.
Upon payment of the License Fee for the Licensed Program, EPI shall make
available to you one (or more if specified) copy(ies) of the Licensed Program
and Materials. Additional copies of Licensed Materials shall be made available
by EPI if specified separately, and as determined under EPI's standard business
policies covering defective media replacement and technology version updates.
In the case of licensing the Licensed programs for a Unix or Unix derivative
operating system or Windows-NT or other platform, the software is licensed by
number of simultaneous users per CPU over a 1-minute period. In the case of
licensing the Licensed Programs for a DOS or DOS derivative operating system,
the software is licensed by workstation. The following rights apply:
1. You do have the right to make a back-up copy of the executable
portions of the program as provided on the install media, for archive
purposes.
2. You do not have the right to make a copy of the executable portions of
the program as provided on the install media and move them to an
additional system (CPU) which increases the total number of
simultaneous users for Unix or other platforms, or increases the total
number of workstations for DOS or DOS derivatives, unless this right
was specifically contracted for by purchase order or other designated
written agreement.
3. You do have the right to put the program onto a multi-user local area
network if desired. However, the number of users who may access the
program at the same time is governed by the number of simultaneous
users for Unix or other platforms, or total number of workstations for
which the program was licensed for DOS or DOS derivatives. A 5-user
license allows 5 terminals or workstations to run the Licensed
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Programs at the same time, including the CPU in which the Licensed
Programs reside for networking purposes.
4. In the event that source code is included on your installation media
solely for the purpose of recompilation to your specific operating
system, such source code, unless otherwise specified, is on loan to
you for the period of recompilation (or "porting") only. In this case,
you do not have the right to make copies of the source code for back-
up or any other purpose, and when the recompilation work is complete,
this media, along with the newly created executable version of the
program, is to be returned to the company (EPI). You may make back-up
copies of the newly created executable portions of the program, as
covered in item #1 above. Only EPI personnel, unless otherwise
specified, have the right to view, copy, or modify source code.
5. You do not have any rights concerning source code unless specifically
stated in writing as part of a separate agreement.
SECTION 3: PROGRAM SUPPORT SERVICES
EPI, at its discretion, will provide to Client sufficient training and support
services to enable Client to commence use of the Licensed Program and Materials.
EPI will correct errors or malfunctions, of which Client notifies it in writing,
in the Licensed Program as supplied for a period of ninety days from the date of
the delivery of the Licensed Program.
Client will be advised of enhancements made to the Licensed Program by EPI
during the term of this license. Client may accept or reject such enhancements
to the Licensed Program on terms proposed by EPI at the time the enhancement is
offered to Client.
If such enhancement is accepted by Client the enhancement shall become part of
the Licensed Program and Materials.
Upon written request, EPI will provide consulting services or special
conversions to Client at its then prevailing rates.
SECTION 4: TERM
The term of this Agreement shall commence upon delivery of the Licensed Program
and shall remain in force in perpetuity unless terminated earlier as provided in
this Agreement.
This Agreement may be terminated by Client within 30 days after delivery of the
Licensed Program and Materials, provided that: (1) Client returns the Licensed
Program and Materials to EPI in the same condition as received, normal wear and
tear expected; and (2) Client provides written certification by a duly
authorized officer stating that all copies of the Licensed Program
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and Materials have been returned to EPI or destroyed; and (3) that no violation
of this Agreement has occurred.
It is understood that Client respects the integrity of the intellectual property
provided herein said Software Programs, and that Client acknowledges EPI as
source of the technology and the program. Any intellectual property theft would
not be lessened by compliance to the conditions set forth in (1), (2), and (3)
in the paragraph above.
In the event that Client exercises its right to terminate this Agreement, any
payment made by Client to EPI will be refunded less charges at EPI's current
rate for time expended by EPI after execution of this Agreement. Refund will be
made only after receipt by EPI of the Licensed Program and receipt of Client's
certification that the Licensed Program and Materials have been returned or
destroyed, and provided that EPI has been notified in writing of the intent to
return such Licensed Program and Materials within 30 days of its delivery.
SECTION 5: PAYMENT
In consideration of the License granted by EPI to Client hereunder, Client will
pay to EPI the amount agreed, as confirmed by invoice.
Payment will be due prior to delivery of the Licensed Program and Materials
unless otherwise stipulated.
The License Fee shall not be construed to include local, state, or federal
sales, use, excise, personal property or other similar taxes or duties or
shipping charges, and any such taxes or shipping charges shall be assumed and
paid for by Client.
The License Fee does not include in excess of 1 set of Licensed Program (media)
and Materials, unless otherwise specified.
EPI will license the Licensed Program and Materials for additional use by Client
or its Affiliate provided that prior to such use, EPI receives written
notification of the intended use, the name of the Affiliate, its location and
relationship to Client; and (2) the parties in good faith arrive at a mutually
agreed upon amount to be paid to EPI for the use of the Licensed Program and
Materials and (3) that the Affiliate agrees to be bound by the stipulations of
this Licensing Agreement.
SECTION 6: DELIVERY
Upon delivery of the Licensed Program and Materials to Client, Client shall
assume risk of loss and damage to the Licensed Program and Materials, and shall
replace any loss or damaged portion at Client's expense.
Installation of the Licensed Program shall be the responsibility of the Client.
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SECTION 7: WARRANTY OF PERFORMANCE
EPI represents and warrants that the Licensed program will perform substantially
in the manner specified in the Licensed Materials.
This performance warranty by EPI shall immediately cease if Client or any third
party enhances the Licensed Program.
DISCLAIMER: THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND
CONDITIONS EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE CONCERNING
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EPI does not warrant that the functions contained in the Licensed Program will
meet Client's requirements or will operate in the combination which Client
select for use, or that the operation of the Licensed Program will be
uninterrupted or error free or that all Program defects will be corrected by
EPI.
No employee, agent or representative of EPI has the authority to bind EPI to any
oral representation or warranty concerning the Licensed Program and Materials.
Any written representation or warranty not expressly contained in this Agreement
shall not be enforceable by Client.
SECTION 8: PROPERTY RIGHTS
EPI warrants that it has the right to grant a license to the Licensed Programs
and Materials.
EPI warrants that the Licensed program and Materials to the best of its
knowledge do not infringe upon any copyright or patent, nor violate the
proprietary information rights of any third party.
In the event of a copyright or patent infringement claim, EPI may, at its own
expense, defend such claim or may procure the right to continue using all or
part of the Licensed Program or may discontinue the Licensed Program. This
shall constitute the entire liability of EPI with respect to a copyright or
patent infringement claim.
Client shall maintain EPI's copyright notice on the Licensed Program and
Materials and shall reproduce such notice on any copies in whole or in part of
the Licensed Program and Materials.
The Licensed Program and Materials are, and shall at all times remain, the
property of EPI, and Client shall have no right, title or interest therein,
except as expressly set forth in this Agreement.
Client may make no enhancements to the Licensed Program unless expressly
authorized in writing by EPI.
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SECTION 9: PROPRIETARY AND TRADE SECRET INFORMATION
Client will use all reasonable precautions and take all necessary steps to
prevent the Licensed Program and Materials in whole or in part from being
acquired by unauthorized persons.
Client will not create, or attempt to create, or permit or help others to
create, the source code from the Licensed Program and Materials furnished
pursuant to this Agreement. Client further agrees to not attempt alteration,
disassembly, reverse-assembly, or unassembly of the program.
Client will not lend, sell, lease or otherwise dispose of the Licensed Program
and Materials without the prior written approval of EPI.
Client warrants that it will not use Licensed Program and Materials for the
purpose of developing any similar or competitive product or aiding another Third
Party in developing any similar or competitive product.
SECTION 10: LIABILITY AND DEFAULT
EPI shall in no event be liable for loss of profit, goodwill, or other special
or consequential damages suffered by Client or others as a result of the use by
Client of the Licensed Program.
Client shall indemnify and hold EPI harmless from any demands, claims, or suits
by a third party, for loss, damages, or expenses including attorney's fees
arising out of use of the Licensed Program and Materials by Client or any other
person.
In the event any proceeding or lawsuit is brought by EPI, Client or third party
in connection with this Agreement, the prevailing party shall be entitled to
recover its costs and reasonable attorney's fees.
Failure by Client to comply with any term or condition under this Agreement
shall entitle the other party to give the party in default written notice
requiring it to make good such default.
Upon the termination of this Agreement, Client shall return the Licensed Program
and Materials and any copies thereof to EPI and shall certify by a duly
authorized officer of Client that it no longer has any rights to use the
Licensed Program and Materials and that the original and all copies of the
Licensed Program and Materials have been returned to EPI.
SECTION 11: GENERAL PROVISIONS
Neither party shall be responsible for delay or failure in performance resulting
from acts beyond the control of such party. Such acts shall include but not be
limited to: an act of God; an act of war; riot; an epidemic; fire; flood or
other disaster; an act of government; a strike or lockout; a communication line
failure; power failure; or failure of the computer equipment or non-EPI
developed software.
EPI is not responsible for failure to fulfill its obligations under this
Agreement due to causes beyond its control.
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THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF OHIO, U.S.A.
In the event of any dispute under this Agreement, a suit may be brought only in
a court of competent jurisdiction in the State of Ohio, U.S.A.
Any action against EPI under this Agreement must be commenced within one year
after such cause of action accrues.
Any dispute arising under this Agreement shall be submitted to binding
arbitration in the city of Cleveland under the rules then prevailing of the
American Arbitration Association and judgment upon the reward rendered may be
entered and enforced in any court of competent jurisdiction.
This Agreement contains the entire understanding of the parties with respect to
the matter contained herein. There are no promises, covenants or undertakings
other than those expressly set forth herein.
This Agreement may not be modified except by writing, signed by authorized
representatives of EPI and Client.
A term or condition of this Agreement can be waived only by written consent of
both parties. Forbearance or indulgence by either party in any regard shall not
constitute a waiver of the term or Condition to be performed and, until
performance of the term or condition is complete, the other party may invoke any
remedy available under this Agreement or by law, despite such forbearance or
indulgence.
This Agreement shall be binding upon and inure to the benefit of the parties to
this Agreement and their respective successors and assigns.
Any notice required or permitted to be sent under this Agreement shall be
delivered by hand or mailed by registered mail return receipt requested, to the
addresses of the parties first set forth in this Agreement. Notice so sent will
be deemed effective when delivered in the mail with postage prepaid.
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