Temporary Distribution License - Novell Inc. and Kofax Image Products Inc.
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TEMPORARY DISTRIBUTION LICENSE
This Agreement is between Novel, Inc. ("Novell"), a corporation organized
and existing under the laws of the State of Delaware, with its principal place
of business at 122 East 1700 South, Provo, Utah 84606, and Kofax Image
products with an office at 3 Jenner Street, Irvine, California 92618.
1. Purpose. Novell has developed, or otherwise has authority to license, the
software programs identified in Exhibit A ("Licensed Works"). These
Licensed Works are components of Novell products. Release versions of the
Licensed Works, which are modified from time to time, are not made
available in the current versions of Novell products, although they are
made available through the NetWire(R) Information service and other sources
readily available to developers. Company develops products that depend on
the current version of the Licensed Works in order to interoperate with
Novell products ("Company Products"). Purchasers of Company Products need
an easy way to obtain the current version of the Licensed Works.
Accordingly, Novell and Company desire to make the Licensed Works available
with the Company Products. This Agreement sets forth the terms and
conditions under which Company may distribute the Licensed Works with
Company Products.
2. Definitions. For the purposes of this Agreement, the following are defined
terms:
2.1 The term "Licensed Works" means the computer programs described in
Exhibit A and the Documentation associated with the computer programs.
The term "Licensed Works" shall not include maintenance modifications
or enhancements of the computer programs, unless provided by Novell.
2.2 The term "Client Software" means the portions of the Licensed Works
which operate on an intelligent, single-user device, and which allow
the device to use the services of a Communications Network.
2.3 The term "Communications Network" means a data communications system
which allows a number of independent data devices to communicate with
each other, but which is limited by a single Network Host, its
internal bridges, and the workstations physically attached to it.
2.4 The term "Documentation" means the manual(s) and any other printed
material provided by Novell with the Licensed Works.
2.5 The term "Host Software" means the portions of the Licensed Works
which operate on a computer system and which provide resources to a
Communications Network.
2.6 The term "Licensed Machine" means a single computer with a single
central processing unit.
2.7 The term "Network Host" or "Network Server" means the single
computing device on which Host Software executed. Use on additional
devices or on a device having more than the number of processing
unit(s) identified in the associated Documentation is prohibited. If
the Documentation does not reference multiple processing units, use of
the Software is limited to one processing unit.
2.8 The term "NetWare Loadable Module Software" or "NLM Software" means
one or more software modules which represent a single program that is
dynamically loaded into the memory of a Network Host.
2.9 The term "VAP" means one or more software modules which is loaded on
a Network Host.
3. License. Each of the Licensed Works to this Agreement is identified in
Exhibit A. Additional Licensed works may be added to this Agreement
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upon the mutual agreement of the parties. Each item on Exhibit A is
identified by a program category, e.g., "Network Programs." Based upon the
applicable category, one of the following licenses applies:
3.1 Network Programs. With respect to Licensed Works identified as
"Network Programs," Novell grants to Company, a nonexclusive,
temporary nontransferable right to duplicate such Licensed Works and
to sublicense to Company's customers the nontransferable right to (i)
use each sublicensed copy of Host Software on a single Network Server,
(ii) use each sublicensed copy of NLM software or VAP software on a
single Network Server, and (iii) to use each sublicensed copy of the
Client Software, and to, reproduce and use copies of such Client
Software in support of the related Host Software provided no direct
monetary or commercial benefit, for the reproduction or use is
received by Company's customers.
3.2 Single Copy Programs. With respect to software programs identified as
"Single Copy Programs," Novell grants to Company a nontransferable,
nonexclusive right to duplicate such Licensed Works and to sublicense
to Company's customers the nontransferable right to use each
sublicensed copy of such Licensed Works on a Single Licensed Machine.
Each of the foregoing licenses shall terminate upon the earlier of (i)
either party's written notice of termination of this Agreement for material
breach, (ii) general availability of the applicable Licensed Work from
Novell, either directly or indirectly, or (iii) thirty (30) days of written
notice for convenience. In addition, either party may terminate this
Agreement in its entirety upon thirty (30) days written notice for material
breach or for convenience. Sublicenses granted to end users in compliance
with this Agreement prior to the effective termination of any such license
right shall remain unaffected by termination.
4. Current Version and "Smart" Installation. Novell modifies and updates the
Licensed Works from time to time; Company shall distribute only the most
current version of the Licensed Works. Further, Company shall distribute
the Licensed Works in such a manner that they can only be installed through
a "smart" installation program developed by Company that will not install
the Licensed Works unless installation will result in the replacement of an
older version of the Licensed Works.
5. Protection. Company agrees to take all reasonable steps to protect the
Licensed Works from unauthorized copying or use. Company acknowledges that
the source code of the Licensed Works is not licensed to Company or
Company's customers. Company agrees not to disassemble or reverse compile
any executable code or object subject to this Agreement in order to
discover the associated source code.
6. Copies and Adaptations. Except as otherwise provided in this Agreement,
Company agrees not to make, or authorize the making of copies or
adaptations of any Licensed Works except as an essential step in the
utilization of the software, or for archival purposes or to backup use of
the software. In making copies or authorizing its customers to make copies,
Company agrees to faithfully reproduce, or require its customers to
faithfully reproduce all proprietary rights notices contained in the
Licensed Works. Company agrees not to copy the Documentation or authorize
any of its customers to copy the Documentation.
7. Ownership. Ownership of, and title to, the Licensed Works (including any
adaptations or copies) shall be held by Novell and/or its licensors. Copies
acquired under sublicense shall be construed solely to allow the sublicense
to exercise its rights under the sublicense.
8. Indemnification. Novell shall indemnify, defend and hold Company harmless
from any and all damages, liabilities, costs and expenses incurred as a
result of any claims, judgments or adjudication against Licensee that the
Licensed Works infringe any patent, trade secret or copyright of any third
party, provided: (i) Customer shall promptly notify Novell in writing of
such claim; and (ii) Novell shall have the sole control of the defense of
any such action and all negotiations for its settlement and compromise.
9. Restrictions. Except as expressly authorized in this Agreement, Company
agrees not to rent,
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lease, sublicense, distribute, transfer, copy, reproduce, display, modify
or time share the Licensed Works or Documentation. Moreover, Company agrees
to incorporate similar restrictions in its sublicenses.
10. Sublicenses. Company agrees to License each copy of the Licensed Works to
its sublicensees by means of a written sublicense, which may include a
"shrink-wrapped," "box-top" or equivalent license. Each such sublicense
shall contain provisions consistent with the provisions of this Agreement.
11. Disclaimer of Warranties. NOVELL MAKES NO WARRANTY, REPRESENTATION OR
PROMISE NOT EXPRESSLY SET FORTH IN THIS SECTION 10 OF THIS AGREEMENT.
NOVELL DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. NOVELL DOES
NOT WARRANT THAT THE LICENSED WORKS WILL SATISFY COMPANY'S REQUIREMENTS OR
THOSE OF ITS CUSTOMERS OR THAT THE LICENSED WORKS ARE WITHOUT DEFECT OR
ERROR OR THAT THE OPERATION OF THE LICENSED WORKS WILL BE UNINTERRUPTED.
12. Limitation of Liability. NOVELL'S AGGREGATE LIABILITY ARISING FROM OR
RELATING TO THIS AGREEMENT OR THE LICENSED WORKS IS LIMITED TO $100,000.
NOVELL SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL INCIDENTAL,
CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES EVEN IF NOVELL HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. NOVELL IS NOT RESPONSIBLE FOR LOST
PROFITS OR REVENUE, LOSS OF USE OF THE LICENSED WORKS, LOSS OF DATA, COSTS
OF RE-CREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM,
OR CLAIMS BY ANY PARTY OTHER THAN COMPANY.
13. GENERAL PROVISIONS
13.1 Notice. Unless otherwise agreed to by the parties, all notices
required under this Agreement shall be deemed effective when received
and made in writing by either (i) registered mail, (ii) certified
mail, return receipt requested, or (iii) overnight mail, addressed and
sent to the attention:
Novell, Inc.
1555 North Technology Way
Oram, Utah 84057
Attn: General Counsel
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Attn:
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13.2 Construction.
13.2.1 Headings. The headings of this Agreement are provided for
reference only and shall not be used as a guide to
Interpretation.
13.2.2 Singular, Plural and Gender. When used in this Agreement, the
singular includes the plural, the plural includes the singular
and gender related pronouns include the feminine, masculine
and neuter.
13.3 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the substantive laws of the State of Utah.
The parties agree that any action relating to ownership of software
provided by Novell under this Agreement shall be instituted and
prosecuted exclusively in the courts of competent jurisdiction of the
State of Utah.
13.4 Force Majeure. If either party shall be prevented from performing any
portion of this Agreement by causes beyond its control, including
labor disputes, civil commotion, war, governmental regulations or
controls, casualty, inability to obtain materials or services or acts
of God, the defaulting party shall be excused from performance for the
period of the delay and for a reasonable time thereafter.
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13.5 Survival of Terms. The provisions of this Agreement which by their
nature extend beyond the expiration or termination of this Agreement
will survive and remain in effect until all obligations are satisfied.
13.6 Waiver. No waiver of any right or remedy on one occasion by either
party shall be deemed a waiver of the right or remedy on any other
occasion.
13.7 Superior Agreement. This Agreement, including all exhibits referenced
herein, sets forth the entire agreement and understanding between the
parties as to the subject matter and merges all prior discussions.
Neither of the parties shall be bound by any conditions, definitions,
warranties, understandings or representations with respect to the
subject matter other than as expressly provided under this Agreement.
This Agreement may not be modified by usage of trade, course of
dealing or otherwise. This Agreement is subject to amendment or
modification only by a writing duly signed by both parties.
13.8 Assignment. Any attempted assignment without written consent shall be
null and void. Where required, neither party shall unreasonably
withhold consent.
13.9 Severability. If any provision of this Agreement is held invalid,
illegal, or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or
impaired thereby, and shall be interpreted, to the extent possible,
to achieve the purpose of this Agreement as originally expressed with
the invalid, illegal or unenforceable provision.
13.10 Independent Contractors. Both parties to this Agreement are
independent contractors and each agrees not to represent itself as
an agent or legal representative of the other party.
13.11 Compliance with Laws. Company shall comply, at Company's own expense,
with all statutes, regulations, rules, ordinances, and orders of any
governmental body, department or agency which apply to or result from
Company's obligations under this Agreement. Company hereby agrees that
it and its subsidiaries and affiliates do not intend and will not
knowingly, without prior written consent, if required, of the office
of Export Administration of the U.S. Department of Commerce,
Washington D.C. 20230, export or transmit directly or indirectly the
technology to any country in group Q, S, W, Y, or Z country specified
in of the Export Administration Regulations issued by the U.S.
Department of Commerce or to any country to which transmission is
restricted by applicable regulations or statutes.
14. Signatures. This Agreement shall become effective on the latter of the
date signed by an authorized representative of Novell or Company.
Company: Kofax Image Products
Signature: /s/ KEVIN DRUM
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Name: Kevin Drum
Title: Vice President-Marketing
Date: July 24, 1996
Novell, Inc.
Signature: /s/ JAMES T. SULLIVAN
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Name: James T. Sullivan
Title: VP OEM Sales
Date: 17 October 1996
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EXHIBIT A
CATEGORIES OF SOFTWARE
NETWORK PROGRAMS: To Be Added
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NWCALLS.DLL
NWIPXSPX.DLL
SINGLE COPY PROGRAMS: To Be Added
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