ACADEMIC SOFTWARE LICENSE AGREEMENT
These license terms are an AGREEMENT between LMKR Holdings (LICENSOR) (or based where you live, one of its affiliates) and YOU (LICENSEE). Please read them carefully. They apply to the evaluation software to be downloaded, after submission and subsequent approval by the Licensor of your application to participate in the Program. Acceptance of the terms of this agreement by YOU does not obligate the Licensor to provide you with the Software. The licensor reserves all rights to refuse acceptance of the application or grant any license or provide any software without citing any reason whatsoever. In case where the Licensor refuses the grant of the license and/or the software this agreement as accepted at the time of application to participate in the program shall become null and void.
A G R E E M E N T
1. Definitions. Except for terms elsewhere defined in the Agreement which will have the meaning so ascribed, in this Agreement the following terms, when capitalized, will mean as follows:
“Evaluation Period” means the time period which commences on either the receipt of (i) the Software by Licensee, if Licensee is capable of successfully installing the Software on Licensee’s computer system(s) without Licensor’s assistance or (ii) a written notice to Licensee from Licensor stating that the license file has been sent and the software may be used for evaluation purposes; and continues until the termination of this Agreement. This period shall under no circumstances exceed 90 Days subject to (i) and (ii) hereinabove.
“Software” means the software provided against this Agreement, including all associated documentation that is provided by Licensor to Licensee.
“Confidential Information” will mean (a) any information given by the disclosing Party to the receiving Party or which is accessed by the receiving Party which is identified in writing, at the time it is given or at a reasonable time thereafter, to be confidential or proprietary, or if given orally, is identified at the time of disclosure or at a reasonable time thereafter in writing, as confidential or proprietary, or which, considering the nature of the information and the circumstances surrounding its disclosure, should reasonably be considered as confidential; (b) other information identified by categories or in some other identifying manner as confidential such as technical data, Software, other proprietary or licensed computer programs (and associated documentation); (c) financial data; business methods and processes; transaction data; customer lists and other information of or about customers and their suppliers, contractors and other third parties including information about unannounced or potential transactions with licensees and other third parties; and information related to unannounced products or services of a Party; and (d) the terms of this Agreement including any of its attachments, schedules, and exhibits. Confidential Information does not include any items which: (i) are in the public domain at the time of the disclosure or become available to the public thereafter without restriction, and not as a result of wrongful act or omission; (ii) is rightfully obtained by the receiving Party from a third Party without restriction as to disclosure; (iii) was lawfully in the possession of the receiving Party at the time of the disclosure other than through receipt from the disclosing Party; (iv) is approved for release by written authorization of the disclosing Party; (v) was developed independently apart from this Agreement by the receiving Party without use of the disclosing Party’s Confidential Information; or (vi) is required to be disclosed by the receiving Party under law or legally enforceable order of court or judicial body (provided that the receiving Party gives the disclosing Party notice of the compelled disclosure in such time as to permit the disclosing Party to seek an order restricting or limiting the compelled disclosure).
2. License Grant.
a. Licensor grants to Licensee, a royalty-free, non-exclusive, non-transferable license to (i) install, execute, operate, perform, reproduce and display the Software during the Evaluation Period to conduct research and prepare and produce or publish a thesis in the course of education as a full time student and (ii) subject to sub-section (b) of this Section, make copies of the Software.
b. Licensee will not, except as expressly permitted by this Agreement, make or permit others to make any copies of the Software without Licensor’s prior written consent.
3. No Endorsement; No Obligation. Execution of this Agreement will be construed to be, an endorsement by Licensee of the Software or other products or services of Licensor. Any published thesis or other work derived or produced in conjunction with the use of this license shall be properly attributed to the Licensor and a copy of the work (soft and hard form) shall be provided free of cost to the Licensor. Licensee does not have an obligation under this Agreement to license the Software on a non-evaluation basis, or purchase any other product or service from, or enter into any other transaction with, Licensor. However, at the end of the evaluation period any renewal period requested may be subject to a processing fee only.
4. Proprietary Rights in Software. Licensee acknowledges that as between the Parties, Licensor owns all right, title and interest (including all intellectual property rights, including any patent rights, copyrights, trade secrets, trade names, service marks, moral rights, know-how and any other similar rights or intangible assets) in and to the Software as provided to the Licensee.
5. Confidentiality. Other than as expressly contemplated herein, neither Party will disclose, provide or otherwise make available to any third party any Confidential Information of the other Party. Each Party agrees to use to the Confidential Information of the other Party only in accordance with the terms of this Agreement and to protect such information with the same degree of care that it uses to protect its own Confidential Information. Licensee agrees to take reasonable steps to ensure that no unauthorized persons will have access to the Software. Licensee will not be liable for inadvertent or accidental disclosure of the Software if such disclosure occurs despite Licensee exercising the same degree of care as it normally takes to preserve and safeguard its own Confidential Information. Licensor agrees not to disclose to third parties the identity of Licensee or any of its affiliates as a customer or prospective customer of Licensor or the existence or nature of the relationship of the Parties under this Agreement.
6. Representations and Warranties. Each Party represents and warrants to the other Party that (a) it has the right and power to enter into this Agreement, (ii) by entering into this Agreement it will not violate the terms and conditions of any of its other agreements, and (iii) the Software, products, materials and information it provides under this Agreement to the other Party do not infringe upon or constitute a misappropriation of any intellectual property or other proprietary right of any third party.
a. Intellectual Property and Other Proprietary Rights Warranty Infringement Indemnification. Licensor will indemnify, defend and hold harmless Licensee, its subsidiaries and affiliates, and the directors, officers, employees and agents of each of them for any cost, loss, damage, liability, judgment, award or expense (including reasonable attorneys’ fees) (collectively, “Liabilities”) related to any third-party claim, action, suit or proceeding (each a “Claim”) arising out of any allegation that the Software or any part thereof infringes the intellectual property or other proprietary rights of any third party provided that Licensee: (1) promptly notifies Licensor in writing of the Claim; and (2) allows Licensor control and cooperates with Licensor, at Licensor’s reasonable expense, in the defense and any related settlement negotiations.
b. Other Indemnification. Each Party will defend, indemnify and hold harmless the other Party, its subsidiaries and affiliates, and the directors, officers, employees and agents of each of them for any Liabilities related to any third-party Claim arising out of any willful misconduct of such Party and relating to this Agreement, provided that the Party seeking indemnity: (1) promptly notifies the other Party in writing of the Claim; and (2) allows the other Party control and cooperates with other Party, at the other Party’s expense, in the defense and any related settlement negotiations.
8. Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER, OR TO A THIRD PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE POSSIBILITY THEREOF. EXCEPT FOR INDEMNIFICATION HEREUNDER, BODILY INJURY (INCLUDING DEATH) OR DAMAGE TO TANGIBLE PROPERTY, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY TO THE OTHER, OR TO A THIRD PARTY, UNDER THIS AGREEMENT, FOR ANY REASON WHATSOEVER, WHETHER IN CONTRACT, TORT, STATUTE, INCLUDING NEGLIGENCE, OR OTHERWISE, EXCEED $25,000. THIS SECTION COMPLETELY AND KNOWINGLY ALLOCATES THE BUSINESS RISKS BETWEEN THE PARTIES.
9. Termination; Effects of Termination.
a. Termination. This Agreement will terminate at the end of the Evaluation Period or any the end of any renewal period thereof, or may be terminated by the Licensor for (i) any reason with a thirty (30) days’ notice to the other Party or (ii) material breach hereof by the other Party which remains uncured more than fifteen (15) days after notice thereof to the breaching Party.
b. Effects of Termination. Upon termination of this Agreement, all rights granted by each Party to the other Party will immediately terminate. Within thirty (30) days after such termination, each Party will return to the other Party or dispose of (as mutually agreed) all Confidential Information of the other Party furnished to it by the other Party pursuant to this Agreement, and each party will certify in writing to the other Party that it has done so. Sections 3 through 11 will survive the termination of this Agreement.
10. Notices; Governing Law. All notices required to be given under this Agreement will be sent by certified mail (return receipt), overnight delivery service, or any other mutually agreed method at the addresses above, which may be changed upon notice in accordance with the terms of this Section. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Texas, without regard to its choice of laws principles. The Parties hereby consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Harris County, Texas for the purposes of adjudicating any matter arising from or in connection with this Agreement. THE PARTIES UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT AND/OR THE CONFIDENTIAL INFORMATION.
11. General. This Agreement supersedes all prior agreements and understandings, and constitutes the complete agreement and understanding, between the Parties with respect to the subject matter hereof. No amendment or other modification to this Agreement will be valid or binding with respect to either Party unless acknowledged and agreed to in writing and signed by a duly authorized officer of each Party. Any forbearance or delay on the part of either Party in enforcing any provision of this Agreement or any of its rights hereunder will not be construed as a waiver of such provision or of a right to enforce same for such occurrence or any future occurrence. If any of the provisions of this Agreement are held invalid, such provisions will be deemed severed and the remaining provisions will remain in full force and effect. Headings used in this Agreement are for reference and convenience only and will not be considered in the interpretation of this Agreement. Neither Party will assign its rights or obligations under this Agreement without the prior written consent of the other Party and any attempt to do so without such consent will be null and void. This Agreement may be executed in counterparts which, taken together, will constitute one Agreement and each party may execute this Agreement by signing such counterpart.