| Glimpse/Webglimpse Software Licensing Agreement |
| |
| THIS SOFTWARE LICENSING AND ROYALTY AGREEMENT (this "Agreement") is made |
| by and between Internet WorkShop (hereinafter "Licensor"), as per resale |
| license granted by The Arizona Board of Regents for The University of |
| Arizona, and "Licensee", a company or individual who has purchased the |
| SOFTWARE from Internet Workshop. |
| |
| WITNESSETH: |
| |
| WHEREAS, Licensor is the author of, or has acquired the rights to, |
| certain computer software programs, documentation, and related written |
| materials (collectively "Software") specifically Glimpse and Webglimpse, |
| and Licensee desires to acquire a right and license to use Licensor's |
| Software under the terms and conditions set forth herein. |
| |
| NOW, THEREFORE, in consideration of the mutual covenants and premises |
| herein contained, the Parties hereto agree as follows: |
| |
| I. LICENSE |
| |
| 1.1 Scope of License Grant. In consideration of the agreement of |
| Licensee to pay royalties hereunder, Licensor hereby grants to Licensee |
| the nonexclusive, nontransferable right and license to use Licensor's |
| Software subject to the terms and conditions of this agreement. The |
| Software is licensed for use solely for Licensee's internal applications |
| in the normal course of Licensee's business. No rights to sublicense or |
| market the Software or Documentation are granted. All rights not |
| specifically granted to Licensee by this license shall remain in |
| Licensor. |
| |
| 1.4 Right to Copy. Licensee shall not copy the Software, in whole or in |
| part, except as expressly provided in this section. The Software may be |
| copied in whole or in part, in printed or machine-readable form, for |
| archival storage or emergency restart purposes, or to replace a worn |
| copy. |
| |
| 1.5 If Licensee obtains source code under this agreement, Licensee |
| agrees it will not use the source code or any associated Licensor |
| proprietary information for any purpose other than Licensee's internal |
| needs and in particular not for the purpose of development or |
| distribution of any product or program similar to, or competitive with, |
| the Software. |
| |
| II. WARRANTY |
| |
| 2.1 LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY |
| DISCLAIMS OTHER WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY |
| OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT |
| SHALL LICENSOR BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR |
| CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, OR FOR LOST DATA OR |
| DOWNTIME, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF |
| SUCH DAMAGES. |
| |
| 2.2 LICENSEE AGREES THAT ITS SOLE REMEDY AGAINST LICENSOR OR ITS |
| REPRESENTATIVES FOR LOSS OR DAMAGE CAUSED BY ANY DEFECT OR FAILURE OF |
| THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, |
| TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL BE (I) |
| THE REPAIR OR REPLACEMENT OF THE SOFTWARE OR (II) IF SUCH REPAIR CANNOT |
| BE MADE OR AN EQUIVALENT REPLACEMENT CANNOT BE PROVIDED, THE REFUND OF |
| AMOUNTS PREVIOUSLY PAID BY LICENSEE. |
| |
| III. OPERATING ENVIRONMENT |
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| 3.1 This Agreement is a [CPU, Site or per-Seat] license. |
| |
| 3.2 In the event this Agreement pertains to a CPU license: |
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| 3.2.1 Licensee shall have the right to use the Software only on a single |
| designated single central processing unit or mainframe computer and its |
| associated peripheral units. |
| |
| If Licensee has purchased a single-domain license, the Software shall be |
| made accessible via a single IP address and/or domain name. Unlimited |
| end users may access the Software through the single central processing |
| unit where it is running. If licensee has purchased a 10-domain or |
| 100-domain license, up to that number of additional IP addresses or |
| Virtual Domains may be configured for use with the Software. Other |
| numbers of domains may be agreed upon separately by the parties. |
| |
| 3.3 In the event this Agreement pertains to a Site license, Licensee has |
| the right to use the Software on any processor or mainframe computer and |
| its associated peripheral equipment owned or operated by Licensee at a |
| single geographic location. |
| |
| 3.4 In the event this Agreement pertains to a per-Seat license, Licensee |
| has the right for a single user to use the software on a single computer |
| per Seat purchased. In this case the Software will not be made available |
| to additional users via Intranet or Internet, but will be used locally |
| by each licensed user. |
| |
| IV. ROYALTIES AND PAYMENTS |
| |
| 4.1 This agreement takes effect and is executed only upon receipt of |
| full Payment by Licensor from Licensee. The amount shall be as according |
| to the published schedule on the Licensor's website, |
| http://webglimpse.net, or by separate agreement between Licensor and |
| Licensee. |
| |
| |
| V. TERM AND TERMINATION |
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| 7.1 Discretionary Termination by Licensee. Licensee, at its option, |
| shall have the right to terminate this Agreement with respect to any |
| license or right granted herein at any time and from time to time with |
| respect to any of the Licensor Software. Any such termination shall be |
| made by written notice to Licensor and shall become effective 90 days |
| after giving such notice. If such termination is made in writing within |
| 60 days of receiving access to Software, Licensor shall refund amounts |
| paid by Licensee to purchase Software. Any amounts paid by Licensee for |
| support or services shall not be refunded. |
| |
| 7.2 Discretionary Termination by Licensor. Licensor, at its option, |
| shall have the right to terminate this Agreement within 60 days of |
| execution, with respect to any license or right granted herein with |
| respect to any of the Licensor Software. Any such termination shall be |
| made by written notice to Licensee and shall become effective 90 days |
| after giving such notice. If such termination is made by Licensor, |
| Licensor shall refund all amounts paid by Licensee in relation to |
| Software. |
| |
| VI. GENERAL |
| |
| 5.1 Governing Law and Arbitration. The validity, construction, and |
| performance of this Agreement shall be governed by the substantive laws |
| of Arizona. The parties agree that any dispute arising under this |
| agreement shall be resolved by arbitration pursuant to the Arizona |
| Uniform Rules of Procedure for Arbitration, and the location of |
| arbitration shall be Tucson, Arizona. The decision of the arbitrator(s) |
| shall be final. |
| |
| 5.2 Conflict of Interest. This Agreement is subject to the provisions of |
| A.R.S. 38-511 and the State of Arizona may cancel this Contract if any |
| person significantly involved in negotiating, drafting, securing or |
| obtaining this Contract for or on behalf of the Arizona Board of Regents |
| becomes an employee in any capacity of any other party or a consultant |
| to any other party with reference to the subject matter of this Contract |
| while the Contract or any extension hereof is in effect. |
| |
| 5.3 Non-discrimination. The parties agree to be bound by applicable |
| state and federal rules governing Equal Employment Opportunity and |
| Non-Discrimination. |