360 VISIBILITY INC.
INTELLECTUAL PROPERTY LICENSE AGREEMENT
THIS INTELLECTUAL PROPERTY AGREEMENT (“License”) is entered into between you (the entity that has entered into this agreement) (“Licensee”) and 360 Visibility Inc. (“360 Visibility”). This License consists of the below terms and conditions regarding Licensee’s use of the Licensed Software (defined below). This License is effective on the date you accept it or upon your first use of the Licensed Software linking to this License.
TERMS & CONDITIONS
Confidential Information means any and all information provided by one party (“Discloser”) to the other party (“Recipient”) pursuant to this License and specifically designated by the Discloser as “confidential” (or which should be considered confidential by the parties) relating to the research, development, products, processes, trade secrets, business plans, customer, finances, and personnel data related to the business of Discloser. Confidential Information does not include any information (i) which has become publicly known through no wrongful act of the Recipient; (ii) which the Recipient developed independently, as evidenced by appropriate documentation; or (iii) which the Recipient becomes aware of from any third party not bound by non-disclosure obligations to the Discloser and with the lawful right to disclose such information to Recipient. Notwithstanding the foregoing, specific information will not be deemed to be within the foregoing exceptions merely because it is contained within more general information otherwise subject to such exceptions.
Copyrights means any and all copyrighted and copyrightable materials, whether or not registered, published, or containing a copyright notice, in any and all media, and further including but not limited to, any and all moral rights and corresponding rights under international agreements and conventions, Derivatives, and any and all applications for registrations, registrations, and/or renewals of any of the foregoing.
Derivative means an adaptation, enhancement, improvement, modification, revision, derivation, or translation of or to the functionality that exists in the Intellectual Property as of the date of this License.
Intellectual Property means any and all (a) Confidential Information; (b) Copyrights; (c) Patents; (d) Derivatives; (e) Technical Information; (f) Technology; and (g) any and all other intellectual property or proprietary rights relating to or arising from any or all of the foregoing.
Licensed Software means the 360 VISIBILITY developed software, in object and/or source code format, as the parties may agree, along with any documentation provided by 360 Visibility pursuant to this License. The definition of Licensed Software specifically includes all Confidential Information and Intellectual Property in or relating or referring to the Licensed Software, as well as any and all Derivatives of the Licensed Software, whether created by 360 Visibility or Licensee or both of them.
Patents means any and all patents, patentable materials, letters patent and utility models, including reissues, divisional, continuations, continuations in part, renewals, and extensions of any of the foregoing and applications therefor (and patents which may issue on such applications) in Canada & foreign nations.
Technical Information: means data and other technical information including, but not limited to: (a) engineering documentation, such as development records, production software information, algorithms, flow charts, design information, drawings, specifications and data sheets; (b) manufacturing documentation such as manufacturing drawings, instructions, specifications, procedures, methods, standards documentation, tooling and fixture drawings, process specifications and instructions; (c) quality and reliability documentation such as quality plans, specifications, instructions, procedures, test plans, test records and regulatory documentation; and (d) user manuals, on-line help, training materials, installation instructions, release notes, problem reports and resolutions, and marketing studies, which may be disclosed by the party in possession thereof without violating obligations to a third Party, and further including any and all Intellectual Property therein, or relating or referring thereto.
Technology means know-how, show-how, procedures, systems, processes, trade secrets, inventions (whether or not patentable and whether or not reduced to practice), algorithms, formulae, research and development data; manufacturing, development and production techniques; and all other proprietary information relating thereto, and further including any and all Intellectual Property therein, or relating or referring thereto.
Trial Term means 30 days.
2.0 Software License
2.1 License Grant: 360 Visibility grants to Licensee a non-exclusive, non-sub-licensable, non-transferable, trial license to use the Licensed Software, in object and/or source code format, as the parties may agree, solely for the internal business purpose of Licensee. This License is specifically limited to the Trial Term. The License granted is on a temporary basis for use during the Trial Term. Licensee may not transfer the License granted under this agreement.
2.2 Limitations on Use by Licensee.
2.3 Audit Right. During normal business hours and at any time during which the Licensed Software is being utilized, 360 Visibility or its authorized representative shall have the right upon advance notice of three (3) days or more to audit and inspect Licensee’s utilization of such, for the sole purpose of verifying compliance with the terms of this License. All audits will be conducted in a manner that does not interfere with Licensee’s business activities. 360 Visibility shall be responsible for all costs and expenses incurred by it or its representatives in the course of such audit or inspection. If verification or self-audit reveals any unlicensed use, you must promptly order sufficient Licenses to cover your past and present use. If material unlicensed use is found, you must reimburse us for the costs we incurred in verification and acquire the necessary additional Licenses at retail license cost within 30 days.
3.0 Confidential Information
3.1 Recipient agrees to use commercially reasonable care, but in no event no less than the same degree of care that it uses to protect its own confidential and proprietary information, to prevent the unauthorized use, disclosure, publication or dissemination of the Confidential Information. Recipient will provide Discloser’s Confidential Information to its employees and contractors only on a “need to know” basis, subject to the terms of this License, provided that Recipient’s employees and contractors have entered into a written Confidential and Non-Disclosure Agreement with Recipient substantially in accordance with these terms and conditions.
3.2 Recipient agrees not to use Confidential Information for its own or any third party benefit without the prior written approval of Discloser. Notwithstanding the foregoing, Recipient may disclose such Confidential Information if and to the extent required by any judicial or governmental request, requirement or order, provided that Recipient agrees to take reasonable steps to give Discloser sufficient prior written notice in order to enable Discloser to contest such request, requirement or order. Recipient will return all tangible Confidential Information, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser immediately upon Discloser’s written request.
3.3 All Confidential Information, including any and all Derivatives thereof created by Discloser or Recipient, will be and remain the property of Discloser and no license or other rights to such Confidential Information is granted or implied. Discloser warrants only that it has the right to disclose the Confidential Information to Recipient. All Confidential Information is provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.
3.4 The terms and conditions of this License will be deemed Confidential Information of both parties.
3.5 The obligation of Recipient to maintain the confidentiality of Confidential Information will survive the expiration or termination of this License for as long as the information in issue is within the definition of Confidential Information or otherwise agreed to in writing by Discloser.
4.0 Notice of Applicable Law; Exemption under Public Records Disclosure Laws
4.1 Licensee is solely responsible for advising 360 Visibility of any applicable public records disclosure or other statute, law, rule, regulation or order that does or may apply to this License, its performance by 360 Visibility or Licensee, or any product or service provided or to be provided by 360 Visibility pursuant to this License.
4.2 In the event Licensee is a government entity subject to state or federal public records disclosure law, it expressly acknowledges and agrees that all 360 Visibility Confidential Information and Intellectual Property constitutes and/or will constitute “trade secrets” as defined by the Uniform Trade Secrets Act as enacted, and/or pursuant to other applicable state or Federal law. 360 Visibility expressly claims exemption from disclosure of this License under any public records law that is or may be applicable to this License. Licensee agrees that prior to any statutorily mandatory disclosure of such 360 Visibility Confidential Information or Intellectual Property, it will promptly notify 360 Visibility of any request for disclosure so that 360 Visibility may take such action or actions it deems necessary to prevent such disclosure.
4.3 Licensee agrees to defend and indemnify 360 Visibility, and pay all costs, fines, penalties, duties, attorneys’ fees or other damages incurred by 360 Visibility as a result of Licensee’s failure to timely provide the information required pursuant to section 5.1 above. Licensee further agrees to hold 360 Visibility harmless from, and that Licensee is solely liable for, any and all costs, fines, penalties, duties, attorneys’ fees or other damages incurred by Licensee as a result of Licensee’s failure to timely provide 360 Visibility with the information required pursuant to section 5.1 above.
5.0 Disclaimer and Limited Liability
360 VISIBILITY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING OUT OF CONTRACT OR TORT OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL 360 VISIBILITY ’S TOTAL LIABILITY ARISING OUT OF OR IN ANY MANNER RELATED TO THIS LICENSE EXCEED FIVE DOLLARS (US$10.00).
6.0 Warranties and Representations
6.1 360 VISIBILITY LICENSES THE LICENSED SOFTWARE “AS IS” AND MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITAL OR NON-INFRINGEMENTREGARDING THE LICENSED SOFTWARE, OR ITS USE AND OPERATION.
6.2 360 VISIBILITY MAKES NO REPRESENTATIONS OR WARRANTIES THAT ACCESS TO OR USE OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
6.3 ALL THIRD-PARTY SOFTWARE INCORPORATED IN THE LICENSED SOFTWARE IS PROVIDED “AS IS”. 360 VISIBILITY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE THIRD PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ITS USE AND OPERATION.
7.1 360 Visibility agrees to defend, indemnify and hold harmless Licensee against any loss, liability, damage, cost or expense, including reasonable legal fees, arising out of any claim or suit which may be brought or made against Licensee arising from any allegation that use of any or all of the Licensed Software, in the form and manner provided by 360 Visibility to Licensee and not (a) modified, altered, or otherwise changed by a person or entity other than 360 Visibility , or (b) a Derivative of the Licensed Software created by or on behalf of Licensee by a person or entity other than 360 Visibility, infringes or otherwise violates the Intellectual Property of a third party.
7.2 360 Visibility will have no liability or obligation of indemnification for any allegation of Intellectual Property infringement where such claim or suit arises from (a) the combination, operation, or use of the Licensed Software with any third party goods or services not specifically provided or authorized by 360 Visibility, if such claim of infringement would have been avoided but for such combination, operation or use or (b) any modifications, alterations, changes or Derivatives of the Licensed Software created by or on behalf of Licensee by a person or entity other than 360 Visibility. 360 Visibility will have sole control over the selection of counsel and the defense of any claim or any settlement thereof, and Licensee will provide 360 Visibility with its reasonable assistance in the defense of such claim, at the expense of 360 Visibility, provided that in no event will 360 Visibility enter into any settlement with any such third party that would bind Licensee to such third party in any manner without the express prior written consent of Licensee.
7.3 In the event that any or all of the Licensed Software is determined to infringe the Intellectual Property of a third party, by either judicial determination or agreement between 360 Visibility and such third party, 360 Visibility will have the right, as Licensee’s sole remedy against 360 Visibility , to elect to take any of the following actions, at 360 Visibility ’s sole discretion: (i) modify the Licensed Software to be non-infringing, (ii) obtain a license from such third party to enable Licensee to continue to use the Licensed Software, or (iii) terminate this License.
7.4 Licensee agrees to defend, indemnify and hold harmless 360 Visibility against any loss, liability, damage, cost or expense, including reasonable legal fees, arising out of any claim or suit which may be brought or made against 360 Visibility arising from (a) the combination, operation, or use of the Licensed Software with any third party goods or services not specifically provided or authorized by 360 Visibility, if such claim of infringement would have been avoided but for such combination, operation or use, (b) any Derivatives of, or other modifications, alterations, or other changes to, the Licensed Software created by or on behalf of Licensee by a person or entity other than 360 Visibility, (c) any unauthorized use of the Licensed Software by Licensee, and/or (d) any breach of this License by Licensee. Licensee will have sole control over the selection of counsel and the defense of any claim or any settlement thereof, and 360 Visibility will provide Licensee with its reasonable assistance in the defense of such claim, at the expense of Licensee, provided that in no event will Licensee enter into any settlement with any such third party that involves the Licensed Software in any way and/or would bind Licensee to such third party in any manner, without the express prior written consent of 360 Visibility.
7.5 Notification. In the event one party seeks indemnification under this Section, it will immediately notify the other party in writing of any claim or proceeding brought against it for which it seeks indemnification hereunder.
7.6 Expiration. The provisions of this Section will survive the expiration or other termination of this License.
8.0 Term and Termination
8.1 This Licensee will commence on the date Licensee accepts it or upon Licensee’s first use of the Licensed Software and continue for the duration of the Trial Term, unless otherwise terminated pursuant to this section 8.0.
8.2 Without prejudice to any rights which it may have under this License or in law, equity or otherwise: i) Licensee may cancel the License at any time during the Trial Term. A cancellation will be effective at the conclusion of the Trial Term. ii) 360 Visibility has the right to terminate this License immediately if Licensee is in breach of any other term of this License.
8.3 On termination of this License for any reason or at the expiration of the Trial Term, the licenses granted to Licensee will immediately terminate and revert in full to 360 Visibility. Licensee will immediately stop any further use of the Licensed Software, uninstall it and return the Licensed Software (including all third party software provided by 360 Visibility), copies, reproductions, Derivatives (including all notes, documentation, and other work product), documentation, and other materials relating to the Licensed Software to 360 Visibility, and provide 360 Visibility with a notarized statement of compliance with the requirements of this Section.
9.1 Independent Contractor. This License does not constitute and will not be construed as constituting a partnership or joint venture between 360 Visibility and Licensee. Neither party shall have any right to obligate or bind the other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third persons.
9.2 Notices. All notices given pursuant to this License may be sent by certified mail, confirmed email or facsimile, hand-delivery, or any other confirmed method of delivery, to the signatories of this License, at their respective business addresses.
9.3 Assignment. Licensee may not assign any of its rights or obligations under this License without the prior written approval of 360 Visibility, which may be given or withheld at the discretion of 360 Visibility. Any assignment made in violation of this Section will be void, unenforceable, and deemed a breach of this License.
9.4 Waiver, Amendment or Modification. Any waiver, amendment or modification of this License will be effective only if made in writing and signed by the parties. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof in the future.
9.5 Compliance with Laws. Licensee will comply with all federal, state, and local laws, codes, ordinances, rules, and regulations in its use of the Licensed Software, and in performing its duties, responsibilities, and obligations pursuant to this License.
9.6 Law and Venue. This License will be expressly and solely interpreted and construed in accordance with and governed by the laws of the Province of Ontario.
9.7 Entire Agreement. This License constitutes the entire agreement between the parties and supersedes all previous agreements or representations, oral or written, relating to this License.
9.8 Cost of Enforcement. Should either party institute legal action concerning this License, the prevailing party will be entitled, in addition to such other relief as may be granted, to recover reasonable attorneys’ fees and all other related court costs.