commonform.org / kemitchell / proprietary-software-license / 1e23d
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Contents

  1. Order Form
  2. Software
  3. Vendor's Obligations
    1. Provide a Download
    2. Provide Any License Keys
    3. Make Sure Customer Can Download Software Dependencies
    4. Publish Documentation
    5. Refund Prepaid Fees for Removed Functionality
    6. Keep Malicious Code Out of the Software
    7. Limit Validation Code in the Software
    8. Protect Customer from Liability
      1. Indemnify Customer
      2. Provide Assurance About Patents
        1. Standard Patent Guarantee
        2. Extended Patent Guarantee
      3. Give Notice of Infringement Claims
  4. Customer's Obligations
    1. Pay Fees
    2. Keep License Keys Confidential and Secure
    3. Follow Rules About Use
    4. Enforce Rules About Use
    5. Indemnify Vendor
  5. Intellectual Property
    1. Software Copyright License
    2. Software Patent License
    3. Documentation Copyright License
    4. Publicity License
    5. No Other Licenses
  6. Liability
    1. Agreed Legal Remedies
    2. Excuses
    3. Only Express Warranties
    4. Limited Damages
      1. Damages Limit
      2. Damages Exclusion
      3. Damages Limit Exceptions
  7. Term and Renewal
  8. Changes
    1. Changes Customer May Make
    2. Changes Vendor May Make
  9. Process
    1. Indemnification Process
    2. Notice Process
    3. Change Process
  10. General Contract Terms
    1. Governing Law
    2. No CISG
    3. No UCITA
    4. Government Procurement
    5. Whole Agreement
    6. Enforcement
    7. Assignment
    8. Lawsuits
      1. Forum
      2. Exclusive Jurisdiction
      3. Inconvenient Forum Waiver
  11. Definitions

Order Form

These terms, together with the Order Form referencing them, make up a software license agreement. The terms Developer, Customer, and Use Limits are defined on the Order Form.

Software

Software means the software identified on the Order Form.

kemitchell/software-covered-versions/1e

The meaning of Covered Versions depends on the Order Form:

If the Order Form specifies a particular version, Covered Versions include only that version.

If the Order Form specifies a version range, such as "1.x.y", then Covered Versions include the latest Generally Available version in that range on the date of this agreement, as well as any new versions within that range that Developer makes Generally Available during the term of this agreement.

If the Order Form does not specify a particular version or version range, then Covered Versions include the latest Generally Available version on the date of this agreement, as well as any new versions that Developer makes Generally Available during the term of this agreement.

A version of the Software is Generally Available if Developer offers it to other customers for use in production systems. Versions that Developer designates with labels like "Alpha", "Beta", "Preview", "Testing", and "Preview" are not Generally Available.

Vendor's Obligations

Provide a Download

Developer agrees to make the Latest Version of the Software available for Customer Personnel to download, free of charge, via the Internet.

Provide Any License Keys

Developer agrees to give Customer Notice of any License Keys required to use the Latest Version of the Software on entering into this agreement. Developer agrees to give Customer Notice of any additional License Keys required to use any new Latest Version of the Software when released.

Make Sure Customer Can Download Software Dependencies

Developer agrees to make sure any Software Dependencies of the Latest Version of the Software not included in the download of the Latest Version of the Software are Publicly Licensed and generally available for Customer to download, free of charge, from a Public Software Repository. Developer does not agree to any service-level agreement or other specific guarantee about any Public Software Repository.

Publish Documentation

Developer agrees to publish the Documentation so that Customer Personnel can read it, free of charge, via the Internet. Developer agrees to make sure the Documentation contains instructions that enable a system administrator experienced with a supported operating system to install, configure, and run the Latest Version of the Software.

Refund Prepaid Fees for Removed Functionality

If Developer changes or removes functionality from the Latest Version of the Software that was part of the functionality of the prior Latest Version of the Software, substantially reducing how useful the Software is to Customer, and Customer ends this agreement within three calendar months of the change, citing the change, Developer agrees to refund any Prepaid Fees.

Keep Malicious Code Out of the Software

Developer agrees to keep the Software free of malicious code.

Limit Validation Code in the Software

With the following exceptions, Developer agrees to keep the Software free of code that automatically limits or disables its functionality:

Developer may include code that limits or disables functionality on failure to validate License Keys.

Developer may include code that automatically limits or disables functionality based on automatic monitoring of Use Limits.

Developer may include code that reports data about License Keys validation and Use Limits monitoring back to Developer systems.

Protect Customer from Liability

So long as Customer has met its obligations under Pay Fees:

Indemnify Customer

Subject to Indemnification Process, Developer agrees to give Customer Indemnification for Legal Claims by others alleging that Permitted Use of the Software does any of these:

infringes any copyright, trademark, or trade secret right

infringes any patent covered by Developer's patent guarantee under Provide Assurance About Patents

breaks any law

Provide Assurance About Patents

Developer's guarantee about patents depends on the Order Form:

Standard Patent Guarantee

If the Order Form specifies "Standard Patent Guarantee", or does not specify any particular patent guarantee, then Developer guarantees that as of the date of this agreement, Developer is not aware of any patent that Developer would infringe by licensing the Software under this agreement, or that Customer would infringe by Permitted Use of the Software.

Extended Patent Guarantee

If the Order Form specifies "Extended Patent Guarantee", then Developer guarantees that Developer will not infringe any patent by licensing the Software under this agreement, and that Customer will not infringe any patent by Permitted Use of the Software.

Give Notice of Infringement Claims

Developer agrees to give Customer prompt Notice of any Infringement Claim.

Customer's Obligations

Pay Fees

Customer agrees to pay the license fees specified on the Order Form. Customer agrees to pay using the method specified on the Order Form. Customer agrees to pay all tax on fees under this agreement, except tax Developer owes on income.

Keep License Keys Confidential and Secure

Customer agrees to share License Keys only as needed to use the Software under this agreement, and to secure License Keys at least as well as Customer's own confidential information.

Follow Rules About Use

Customer agrees not to:

reverse engineer the Software

exceed the Use Limits

circumvent any access controls or other limits of the Software

circumvent code permitted under Limit Validation Code in the Software

violate another's Intellectual Property Right or other legal right using the Software

breach any agreement using the Software

break any law using the Software

break any import or export law by exporting or reexporting the Software

remove proprietary notices from the Software or the Documentation

use the Software to analyze it against any competitive product or service

disclose data about the performance of the Software

Enforce Rules About Use

Customer agrees to make sure Customer Personnel and other personnel abide by Keep License Keys Confidential and Secure and Follow Rules About Use.

Indemnify Vendor

Subject to Indemnification Process, Customer agrees to give Developer Indemnification from Legal Claims by others based on:

Customer breach of this agreement

Use of the Software at Customer's Own Risk

misuse of Customer's License Keys

Intellectual Property

Software Copyright License

Developer grants Customer and each of the Users a Standard License, for any copyrights in Covered Versions of the Software that Developer can license, to copy, install, back up, and make Permitted Use of the Software.

Software Patent License

Developer grants Customer and each of the Users a Standard License, for any patents Developer can license, to make Permitted Use of the Software.

Documentation Copyright License

Developer grants Customer and Customer Personnel a Standard License, for any copyrights in the Documentation that Developer can license, to read, back up, and copy the Documentation.

Standard License means a nonexclusive license for the term of this agreement that is conditional on payment of all fees as required by this agreement and limited by the Use Limits.

Publicity License

If the Order Form specifies "Publicity Rights", then Developer may identify Customer as a customer to current and potential customers, and may list Customer's business name and logo in promotional materials, such as Developer's websites, during the term of this agreement.

No Other Licenses

Apart from the licenses in Intellectual Property, this agreement does not license or assign any Intellectual Property Right.

Liability

Agreed Legal Remedies

Each side's only legal remedy for Legal Claims covered by Indemnification will be Indemnification.

Customer's only legal remedy for changes to software functionality in the Latest Version of the Software will be refunds under Refund Prepaid Fees for Removed Functionality.

Excuses

Neither side will be liable for any failure or delay in meeting any obligation under this agreement caused by:

failure of the other side or its personnel to meet their obligations under this agreement

actions done or delayed on written request of the other side

fire, flood, earthquake, and other natural disasters

declared and undeclared wars, acts of terrorism, sabotage, riots, civil disorders, rebellions, and revolutions

extraordinary malfunction of Internet infrastructure, data centers, or communications utilities

government actions taken in response to any of these causes

Only Express Warranties

With the exception of its obligations in Vendor's Obligations, Developer provides the Software as is, without any warranty. Developer disclaims any warranties the law might otherwise imply, like warranties of merchantability, fitness for any particular purpose, title, or noninfringement.

Limited Damages

Damages Limit

Subject to Damages Limit Exceptions, neither side's total liability for breach of this agreement will exceed the amount Customer paid Developer under this agreement during the twelve months before the first claim is filed. This limit applies even if the side liable is advised that the other may suffer damages, and even if Developer paid nothing at all.

Damages Exclusion

Neither side will be liable for breach-of-contract damages they could not have reasonably foreseen when entering this agreement.

Damages Limit Exceptions

Limited Damages does not limit damages for breach of:

Pay Fees

Follow Rules About Use

Enforce Rules About Use

Provide Assurance About Patents

Indemnify Customer

Indemnify Vendor

Term and Renewal

This agreement will continue for the initial term specified on the Order Form. If the Order Form specifies automatic renewal, then this agreement will renew automatically for additional periods, each as long as the initial term.

Changes

Changes Customer May Make

Subject to Change Process:

Customer may end this agreement at any time.

If the Order Form specifies "Flexible Pricing" for increased Use Limits, Customer may increase its Use Limits within the limits specified on the Order Form at any time. Customer changes to Use Limits take effect as soon as Customer pays the additional fees.

Changes Vendor May Make

Subject to Change Process:

If Customer breaches this agreement, Developer gives Notice of the breach, and Customer does not cure the breach within 30 calendar days, Developer may end this agreement immediately.

Developer may end this agreement when it would otherwise automatically renew by giving Notice at least 30 calendar days ahead of time.

Developer may take any of these steps in response to an Infringement Claim:

Developer may release a new version of the Software so that Permitted Use of the Software will no longer infringe or break the law.

If the problem is infringement, Developer may get a license for Customer so that Permitted Use of the Software will no longer infringe.

If the problem is illegality, Developer may get the government approvals, licenses, or other requirements needed to abide by the law.

Developer may refund any Prepaid Fees and end this agreement immediately.

Process

Indemnification Process

Both sides agree that to receive Indemnification under this agreement, they must give Notice of any covered Legal Claims quickly, allow the other side to control investigation, defense, and settlement, and cooperate with those efforts. Both sides agree that if they fail to give Notice of any covered Legal Claims quickly, Indemnification will not cover amounts that could have been defended against or mitigated if Notice had been given quickly. Both sides agree that if they take control of the defense and settlement of any Legal Claims covered by Indemnification, they will not agree to any settlements that admit fault or impose obligations on the other side without their Permission.

Notice Process

Both sides agree that to give Notice under this agreement, the side giving Notice must send by e-mail to the address the recipient given with its signature, or to a different address given later for Notice going forward. If either side finds that e-mail can't be delivered to the e-mail address given, it may give Notice by registered mail to the address on file for the recipient with the state under whose laws it is organized.

Change Process

Customer and Developer agree to make changes allowed under this agreement by Notice.

General Contract Terms

Governing Law

The law of the state of Developer's Address will govern this agreement

No CISG

kemitchell/no-cisg/2e

The United Nations Convention on Contracts for the International Sale of Goods will not apply to this agreement.

No UCITA

kemitchell/no-ucita/2e

As far as the law allows, the Uniform Computer Information Transactions Act will not apply to this agreement.

Government Procurement

kemitchell/software-far/2e

The Software is commercial computer software, and the Documentation is commercial computer software documentation. Both were developed exclusively at private expense. If Customer's procurement is subject to Federal Acquisition Regulation 12.212 or Defense Federal Acquisition Regulation Supplement 227.7202, Customer's rights will be only those stated in this agreement.

Whole Agreement

Both sides intend the Order Form and these terms as the final, complete, and only expression of their terms about licensing of the Software. However, this agreement does not affect any separate nondisclosure agreement Developer and Customer may have.

Enforcement

Only Developer and Customer may enforce this agreement.

Assignment

Each side may assign all its rights, licenses, and obligations under this agreement, as a whole, to a new legal entity created to change its jurisdiction or legal form of organization, or to an entity that acquires substantially all of its assets or enough securities to control its management. Otherwise, each side needs Permission to assign any right or license under this agreement. Attempts to assign against the terms of this agreement will have no legal effect.

Lawsuits

Lawsuit means a lawsuit brought by one side against the other, related to this agreement or the Software.

Developer's Local Courts means the state and federal courts with jurisdiction at Developer's Address.

Forum

Both sides agree to bring any Lawsuit in Developer's Local Courts.

Exclusive Jurisdiction

Both sides consent to the exclusive jurisdiction of Developer's Local Courts. Both sides may enforce judgments from Developer's Local Courts in other jurisdictions.

Inconvenient Forum Waiver

Both sides waive any objection to venue for any Lawsuit in Developer's Local Courts and any claim that the other brought any Lawsuit in Developer's Local Courts in an inconvenient forum.

Definitions

Customer Personnel means Customer's employees and each Customer subsidiary's employees, as well as independent contractors providing services to Customer.

Documentation means documentation for the Software.

Indemnification means indemnifying and holding harmless for all liability, expenses, damages, and costs.

Infringement Claim means a court order against Customer's use of the Software based on a claim that it infringes any Intellectual Property Right or breaks any law, or a threat of that kind of claim that Developer believes credible.

Intellectual Property Right means any patent, copyright, trademark, or trade secret right, or any other legal right typically referred to as an intellectual property right.

Latest Version of the Software means the latest of the Covered Versions of the Software.

Legal Claims means claims, demands, lawsuits, and other legal actions.

License Keys means license keys or other secrets used to validate rights to use the Software.

Notice means a written communication from one side to the other per Notice Process.

Permission means prior Notice of consent.

Public Software Repository means a website or Internet service that provides free-of-charge downloads of Publicly Licensed Software.

Publicly Licensed means published with a notice of a license to the public, or to everyone who receives a copy.

Permitted Use of the Software means Customer's use of the Software, other than Use of the Software at Customer's Own Risk.

Prepaid Fees means fees Customer prepaid under this agreement for time remaining in the term of this agreement.

Software Dependencies means software from others that the Software depends on, installs, configures, or links, directly or indirectly.

Use of the Software at Customer's Own Risk means:

use of the Software in breach of this agreement

use of the Software with changes, additions, or in combination with other software, computers, or data, in a way that infringes someone else's Intellectual Property Right or breaks the law, if use of the Software as provided, as described by the Documentation, would not

use of other than the Latest Version of the Software that infringes someone else's Intellectual Property Right or breaks the law, if Customer had Notice that using the Latest Version of the Software would not

unauthorized use of the Software with Customer License Keys

Users means Customer Personnel using the Software.

Developer's Address means the address that Developer gives along with its signature to the Order Form.