RADIANT LOGIC, Inc. (“RADIANT”) hereby grants Customer, and Customer hereby accepts from RADIANT, a non-¬exclusive and non-transferable right and license to use the Products specified on one or more separately executed purchase orders (the “Purchase Orders”) subject to the terms and conditions specified below.
(a) “Products” means (i) the machine-readable object code version of the computer programs described in and specifically identified in one or more separately executed Purchase Order(s) that RADIANT makes available, whether embedded on disc, tape or other media, for use on the computer platform specified in the Purchase Order(s) (the "Software"), (ii) the published user manuals and documentation that RADIANT makes generally available for the Software (the "Documentation"), (iii) the fixes, updates, upgrades or new versions of the Software or Documentation that RADIANT may provide to Customer under this Agreement (the "Enhancements") and (iv) any copy of the Software, Documentation or Enhancements.
(b) “License Metrics” means the type, size, and quantity of servers or quantity of users specified in the Customer Purchase Order.
Customer may use the Products only in and for Customer's own internal purposes and business operations for the term specified in the Purchase Order. Customer may use the Products only per the License Metrics described in the Purchase Order. Any other change in License Metrics, (including any increase in the number of licensed servers, CPUs, or users) will require RADIANT’s prior approval, which may be subject to additional charges. Customer will not otherwise copy, translate, modify, adapt, decompile, disassemble or reverse engineer the object code version of the Products, except as and to the extent expressly authorized by applicable law.
Customer will pay to RADIANT the License Fee in the currency specified in the Purchase Order and within thirty (30) days of the effective date of the Purchase Order. All amounts specified in the Purchase Order are exclusive of any applicable value added, use, sales, service, property or other taxes or contributions, which Customer will pay in addition to the amount due and payable. Any amount not paid when due will accrue interest annually at the Prime rate plus 3%. Customer will pay such interest when remitting the principal amount to RADIANT.
4. MAINTENANCE AND SUPPORT
(a) Maintenance and Support. During the Annual Maintenance Period, if any, specified in the Purchase Order (the "Annual Maintenance Period"), RADIANT will provide Customer, at no additional charge, with (i) the fixes and updates that RADIANT may make generally available as part of its standard maintenance services (the "Updates"), (ii) a replacement copy of the Product if the media becomes damaged or is destroyed to the extent that the Product is unusable, and (iii) advice, consultation and assistance to use the Product and diagnose and correct problems that Customer may encounter (the "Hot-Line Support"). RADIANT will offer the Hot-Line Support remotely by telephone, fax, email, or other electronic communication during its normal business hours unless otherwise specified in the Purchase Order. RADIANT may offer on-site support to Customer at additional charges. Customer will automatically receive Updates and Hot-Line Support for additional 12-month periods after the Annual Maintenance Period unless Customer notifies RADIANT in writing of its desire to terminate such support at least 30 days prior to the expiration of the then current Annual Maintenance Period. The charge for Updates and Hot-Line Support shall be RADIANT’s annual fee in effect at the time of renewal. Customer may reinstate the Updates and Hot-Line Support at any time by paying RADIANT the then current reinstatement fee in effect at the time of the reinstatement.
(b) Limitation. The Updates will not include any upgrade or new version of the Products that RADIANT decides, in its sole discretion, to make generally available as a separately priced item. This Section will not be interpreted to require RADIANT to (i) develop and release Enhancements or (ii) customize the Enhancements to satisfy Customers' particular requirements. If an Enhancement replaces the prior version of the Product, Customer will destroy such prior version upon installing the Enhancement.
5. WARRANTIES AND REMEDIES
(a) Limited Warranty. RADIANT warrants that it has the right to (i) enter into this Agreement and (ii) grant the licenses hereunder. RADIANT also warrants that the Software will perform substantially as described in the accompanying Documentation. Customer acknowledges that (i) the Products may not satisfy all of Customer's requirements and (ii) the use of the Products may not be uninterrupted or error-free.
(b) Remedies. In case of breach of warranty, RADIANT or its representative will correct or replace any defective Software or, if not practicable, RADIANT will accept the return of the defective Software, terminate the applicable Purchase Order and refund to Customer the License Fee actually paid to RADIANT for the defective Software less depreciation based on a 5 year straight line depreciation schedule. Customer acknowledges that this Paragraph sets forth Customer's exclusive remedy, and RADIANT's exclusive liability, for any breach of warranty or other duty related to the quality of the Products.
(c) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR REQUIRED BY APPLICABLE LAW, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY RADIANT, ITS LICENSORS OR REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, SATISFACTION AND FITNESS FOR A PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
(a) Indemnity. If an action is brought against Customer claiming that a Product infringes a patent, trade secret or copyright, RADIANT will defend Customer at RADIANT's expense and, subject to this Section and Section 7, pay the damages and costs finally awarded against Customer in the infringement action, but only if (i) Customer notifies RADIANT promptly upon learning that the claim might be asserted, (ii) RADIANT has sole control over the defense of the claim and any negotiation for its settlement or compromise, and (iii) Customer takes no action that is contrary to RADIANT's interest.
(b) Alternative Remedy. If a claim described in Section 6(a) may be or has been asserted, Customer will permit RADIANT, at RADIANT's option and expense, to (i) procure the right to continue using the Product, (ii) replace or modify the Product to eliminate the infringement while providing func¬tionally equivalent performance, or (iii) accept the return of the Product and refund to Customer the License Fee actually paid to RADIANT for such Product, less depreciation based on a 5-year straight-line depreciation schedule.
(c) Limitation. RADIANT shall have no indemnity obligation to Customer under this Section if the patent or copyright infringement claim results from (i) a correction or modification of the Product not provided by RADIANT, (ii) the failure to promptly install an Update if installation of such Update would have avoided the infringement, or (iii) the combination of the Product with other non-RADIANT software.
7. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL RADIANT OR ITS LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CUSTOMER'S CLAIMS OR THOSE OF ITS CUSTOMERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, USE OF MONEY OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH RADIANT OR ITS LICENSORS MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE LICENSE FEES ACTUALLY PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT THAT DIRECTLY CAUSED THE DAMAGE. THIS SECTION WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION.
All trademarks, service marks, patents, copyrights, trade secrets and other proprietary rights in or related to the Products are and will remain the exclusive property of RADIANT or its licensors, whether or not specifically recognized or perfected under local applicable law. Customer will not take any action that jeopardizes RADIANT's or its licensor's proprietary rights or acquire any right in the Products, except the limited use rights specified in Section 2. RADIANT or its licensor will own all rights in any copy, translation, modification, adaptation or derivation of the Products, including any improvement or development thereof.
(a) Confidentiality. Customer acknowledges that the Products constitute and incorporate confidential and proprietary information developed or acquired by or licensed to RADIANT. Customer will take all reasonable precautions necessary to safeguard the confidentiality of the Products, including at a minimum those taken by Customer to protect Customer's own confi¬dential information. Customer will not allow the removal or defacement of any confidentiality or proprietary notice placed on the Products. The placement of copyright notices on these items will not constitute publication or otherwise impair their confidential nature.
(b) Disclosure. Customer will not disclose, in whole or in part, the Products or any portion thereof or other information that has been designated as confidential to any individual, entity or other person, except to those of Customer's employees or consultants who require access for Customer's authorized use of the Products, provided such consultants agree in writing to comply with the use and non-disclosure restrictions applicable to the Products under this Agreement. Customer acknowledges that any unauthorized use or disclosure of the Products may cause irreparable damage to RADIANT and its licensors. If an unauthorized use or disclosure occurs, Customer will immediately notify RADIANT and take, at Customer's expense, all steps which may be available to recover the Products and to prevent their subsequent unauthorized use or dissemination. RADIANT agrees to take the same action regarding any information designated in writing as proprietary which it receives from Customer ("Customer Information").
(c) Limitation. Neither RADIANT nor Customer will have any confidentiality obligation with respect to any portion of the Products or Customer Information that (i) the receiving party knew or independently developed before receiving such Products or Customer Information under this Agreement, (ii) the receiving party lawfully obtained from a third party under no confidentiality obligation, or (iii) became available to the public other than as a result of any act or omission by the receiving party or any of receiving party’s employees or consultants.
Customer may terminate this Agreement or any Purchase Order, without right to refund, by notifying RADIANT of such termination. RADIANT may terminate this Agreement, upon reasonable notice and without judicial or administrative resolution, if Customer or any of Customer's employees or consultants breach any term or condition hereof. This Agreement will terminate automatically if Customer becomes insolvent or enters into bankruptcy, suspension of payments, moratorium, reorganization, or any other proceeding that relates to insolvency or protection of creditors' rights.
Upon the termination of this Agreement for any reason, all rights granted to Customer hereunder will cease, and Customer will promptly (i) purge the Products from all of Customer's computer systems, storage media and other files, (ii) destroy the Products and all copies thereof, and (iii) deliver to RADIANT an affidavit which certifies that Customer has complied with these termination obligations. The provisions of Sections 7, 8, 9, 10 and 13 will survive the termination of this Agreement.
During the term of this Agreement, RADIANT or its representative may, upon prior notice to Customer, inspect the files, computer processors, equipment and facilities of Customer during normal working hours to verify Customer's compliance with this Agreement. While conducting such inspection, RADIANT or its representative will be entitled to copy any item that Customer may possess in violation of this Agreement.
Customer shall not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without RADIANT's prior approval which shall not be unreasonably withheld.
13. U.S. EXPORT RESTRICTIONS
Customer acknowledges that the Products and all related technical information, documents and materials, are subject to export controls under the U.S. Export Administration Regulations. Customer will (a) comply strictly with all legal requirements established under these controls, (b) cooperate fully with RADIANT in any official or unofficial audit or inspection that relates to these controls, and (c) not export, re-export, divert or transfer, directly or indirectly, any such item or direct products thereof to Cuba, Iran, Iraq, Libya, North Korea, or any additional country that is embargoed by Executive Order or identified in the Purchase Order, unless Customer has obtained the prior written authorization of RADIANT and the U.S. Commerce Department. Upon notice to Customer, RADIANT may modify this list to conform to changes in the U.S. Export Administration Regulations.
14. RESTRICTED RIGHTS
If Customer is a U.S. government agency, in accordance with section 12.212 of the Federal Acquisition Regulations, Customer acknowledges that its use, duplication and disclosure of the Products are governed by, and subject to, this Agreement. If, for any reason, that section 12.212 is not applicable, Customer acknowledges that its use, duplication and disclosure of the Products are subject to the Commercial Computer Software Restricted Rights clause, FAR 52.227.19(c). RADIANT LOGIC, inc., 1682 Novato Blvd., Novato, California 94947, USA.
All notices or approvals required or permitted under this Agreement must be given in writing. Any terms and conditions of any unilateral letter, memorandum, purchase order or other writing issued by Customer shall not be binding on RADIANT. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by an authorized representative of RADIANT and Customer. This Agreement will bind Customer's successors-in-interest. This Agreement will be governed by and interpreted in accordance with the laws of the State of California.
If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement, unless RADIANT in good faith deems the unenforceable provi¬sion to be essential, in which case RADIANT may terminate this Agreement effective immediately upon notice to Customer.
This Agreement constitutes the complete and entire statement of all conditions and representations of the agreement between RADIANT and Customer with respect to its subject matter and supersedes all prior writings or understandings