SOURCE CODE
END-USER LICENSE AGREEMENT
By Electronic Team, Inc.
RECITALS
WHEREAS, Licensor is engaged in the business of designing and developing computer-related serial port virtualization software solutions and has created the Virtual Serial Port Driver that is described as the Software in further detail below;
WHEREAS, Licensee desires to utilize such Software; and
WHEREAS, Licensor and Licensee believe it is in their mutual interest and desire to enter into an agreement where Licensee would use the Software pursuant to the terms and conditions provided herein.
NOW THEREFORE, in consideration of the premises and the mutual covenants of this Agreement, the parties hereto agree as follows:
1. DEFINITIONS
When used in this Agreement, the following terms shall have the respective meanings indicated, such meanings to be applicable to both the singular and plural forms of the terms defined:
“Intellectual Property Rights” means all intellectual property or other proprietary rights throughout the world, whether existing under statute, at common law or in equity, now existing or created in the future, including:
(i) copyright, trademark and patent rights, trade secrets, moral rights, right of publicity, authors’ rights;
(ii) any application or right to apply for any of the rights referred to in paragraph (i); and,
(iii) all renewals, extensions, continuations, divisions, restorations or reissues of the rights, or applications referred to in paragraphs (i) and (ii).
“Licensor” means Electronic Team Inc. with offices at 1800 Diagonal Road, Ste 600 Alexandria, VA 22314, USA.
“Licensee” means ____________ with offices at ____________________________________.
“Software” means (a) all of the contents of the files, disk(s), CD-ROM(s) or other media that are provided to Licensee or Used by Licensee, which pertain to Licensor’s “Virtual Serial Port Driver”; (b) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this Agreement is provided or which are Used pursuant to this Agreement, including but not limited to (i) source code and object libraries, including those for the Software GUIs; (ii) related explanatory written materials or files (“Documentation”); and (iii) Software setup files and code samples (if any); (c) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by Licensor (collectively, “Updates”).
“Source Code” means the text listing of commands that have been compiled or assembled into an executable computer program for the Software.
“Use” or “Using” or “Used” means to access, install, download, make unlimited copies, modify, enhance, compile into executable code, and create derivative works, at Licensee’s own discretion, or otherwise benefit from using the functionality of the Software to fit its own requirements, for support purposes, and for marketing, distribution, demonstration, and training purposes. Additionally, “Use” includes modification, nationalization, translation, reproduction, and incorporation of the Documentation for use with the Software.
“Protect” or “Protected” means to transform the Software’s Source Code into a form that is unintelligible to humans, to conceal its purpose or its logic to deter reverse engineering, and protect Licensor’s development work from stealing.
“System” means Windows OS, GNU/Linux or macOS, or any virtual machine.
2. GENERAL USE
2.1. The Licensor grants the Licensee a perpetual, revocable, non-exclusive, worldwide right to Use the Software (the “License”) under the following conditions:
The Software may be installed and used by Licensee for an unlimited number of developers within the Licensee’s organization, on an unlimited number of systems, for an unlimited number of projects developed by, or on behalf of, the Licensee. Additionally, Licensee’s contractors may Use the Software solely on behalf of the Licensee provided that all such contractors shall be subject to the terms and conditions set forth in this Agreement.
This License includes full and complete programming source code of all of the Software components, developed by the Licensor, but shall specifically exclude the Software’s Graphical User Interface (the “GUI”).
The Source Code under this License may be distributed by Licensee, in object code or binary format, as an integral part of or incorporated into software/hardware projects licensed or sold by or on behalf of the Licensee, directly or indirectly through resellers, distributors, original equipment manufacturers, value-added resellers, or other third parties (collectively, “Distributors”). However, except as expressly set forth herein, the Licensee may not resell, rent, lease or distribute the Source Code on a stand-alone basis; it may only be distributed as an integral part of or incorporated into the software or hardware product produced by or on behalf of the Licensee.
The Licensee may implement any changes and modifications to the Source Code purchased, including fixes and functionality extensions, porting to a new platform, etc.
Licensee must Protect all Source Code, regardless of whether such Source Code is distributed by Licensee, to the extent commercially reasonable.
The Licensee may not use the Source Code to develop or distribute a stand-alone USB redirection product that would in any way compete with the products produced by or on behalf of the Licensor, which shall specifically include the Software.
The Licensee shall not remove, erase, obscure or tamper with any copyright or any other product identification or proprietary rights notices, seal or instructional label printed or stamped on, affixed to, or encoded or recorded in or on any Source Code.
The Licensee shall not, except with Licensor’s prior written permission, publish any performance or benchmark tests or analysis relating to the Software.
The License is royalty-free. The Licensor shall not claim any fee for the sales of the Licensee’s applications that have any of the Source Code incorporated.
Licensee may sell, sublicense, and distribute the Software (in object code) to Distributors and End Users worldwide as part of a product distributed by or on behalf of Licensee and consistent with the terms and conditions set forth herein. Additionally, Licensee (and its affiliates and subsidiaries) may sublicense to Distributors all rights granted to Licensee hereunder, excluding any right to Use the Software Source Code.
2.2 The rights and License granted hereunder shall include the right and license in and to any intellectual property to the extent required for Licensee to exercise the other rights and License granted hereunder. Except as expressly set forth in this Agreement, Licensor hereby waives any and all moral rights, including any right to identification of authorship, rights of approval of modifications, or limitation on subsequent modification that Licensor has or may have in the Software.
2.3 The License may be terminated by Licensor, without prejudice to any other right available to Licensor, following material breach of this Agreement by Licensee and Licensee’s failure to cure the breach within thirty (30) days of receiving Licensor’s notice of the breach. Upon termination, Licensee must promptly cease all Use and distribution of the Software and/or Source Code and promptly return, destroy, or permanently destroy the Software and/or Source Code in Licensee’s possession or control. In addition, in the event of a breach of any term of this Agreement by Licensee, Licensor may seek an injunction and/or bring a legal action against Licensee seeking monetary damages; provided that, in the event of any breach or threatened breach by Licensee of any covenant, obligation or other provision set forth in this Agreement, Licensor shall be entitled (in addition to any other remedy that may be available to it) to (i) a decree or order of specific performance or mandamus to enforce the observance and performance of such covenant, obligation or other provision, and (ii) an injunction restraining such breach or threatened breach.
3. Prohibited Actions. The Licensee AGREES not to Use or permit Use of the Software for any purpose that may (i) menace, threaten, defraud or harass any person (including other users of the Software) or cause damage or injury to any person or property; (ii) involve the publication of any material that is false, defamatory, harassing or obscene; (iii) violate privacy rights or promote bigotry, racism, hatred or harm; (iv) constitute an infringement of intellectual property or other proprietary rights; (v) otherwise violate applicable laws, ordinances or regulations; (vi) Transmit any worms or viruses or any code of a destructive nature through Licensor’s Software; (vii) Misrepresent the source, identity, or content of information transmitted via Software and related Source Code, for example, by claiming to be someone that Licensee is not; (viii) Use the Software for any illegal or unlawful purpose; (ix) Interfere with any security-related features of the Software, or otherwise attempt to gain unauthorized access to the Software or networks connected to the Software, through hacking, password mining, or any other means or interfere or attempt to interfere with the proper working of the Software or any activities conducted via the Software; (x) Intentionally interfere with the operation of the Software or any User’s enjoyment of the Software; and (xi) Use the Software in any manner that in Licensor’s sole discretion could damage, disable, overburden, or impair it or interfere with any other party’s Use and enjoyment of the Software.
Licensee AGREES not to access (or attempt to access) the Software by any means other than through the means provided by Licensor or its authorized Partners. Licensee AGREES not to access (or attempt to access) the Software by way of automated means and that Licensee will not engage in any activity that interferes with or disrupts the operation of the Software (or the servers and networks which are connected to the Software).
Specifically, Licensee AGREES that Licensee will not:
remove or modify any Software markings or any notice of Licensor’s or its licensors’ proprietary rights;
disrupt or interfere with any other user’s enjoyment of the Software
upload, post, or otherwise transmit through the Software any viruses or other harmful, disruptive, or destructive files;
access or attempt to access any portion of the Software, which Licensee is not authorized to access under the present License; and
disrupt or interfere with the security of, or otherwise cause harm to the Software, or system resources, accounts, passwords, servers, and/or networks connected to or accessible through the Software.
No part of the Software may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other methods, except as expressly provided herein.
4. Licensor reserves the right to disable, remove, or revoke access to Licensee to any portion of the Software if Licensee violates the present Agreement. Licensor shall have no liability to Licensee in the event that Licensor takes such action.
Licensee AGREES to defend and indemnify Licensor against any claim arising out of a violation of Licensee’s obligations under this Section.
Licensee AGREES to make every reasonable effort to prevent unauthorized third parties not authorized by Licensor from accessing or using the Software.
ANY VIOLATION OF THE PROVISIONS UNDER SECTION 3 (DETERMINED IN LICENSOR’S SOLE DISCRETION) WILL RESULT IN THE TERMINATION OF LICENSEE’S ABILITY TO USE THE SOFTWARE
LICENSEE UNDERSTANDS AND AGREES THAT LICENSOR CANNOT BE RESPONSIBLE FOR ANY CONTENT POSTED, SHARED, OR TRANSMITTED VIA LICENSEE’S USE OF THE SOFTWARE AND WHICH VIOLATES THE PROHIBITIONS AS STATED UNDER SECTION 3 OF THIS AGREEMENT. LICENSEE AGREES TO USE THE SOFTWARE AT LICENSEE’S OWN RISK.
LICENSOR SHALL NOT BE RESPONSIBLE FOR ANY VIOLATION OF APPLICABLE LAWS, RULES, OR REGULATIONS COMMITTED BY LICENSEE WHEN USING THE SOFTWARE. IT IS LICENSEE’S RESPONSIBILITY TO ENSURE THAT LICENSEE’S USE OF THE SOFTWARE DOES NOT CONTRAVENE APPLICABLE LAWS, RULES, OR REGULATIONS.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Licensor (or its licensors) owns exclusively and reserves all rights, title and interest in and to the Software and Source Code, including all Intellectual Property Rights. Licensee may not exercise any right, title and interest in and to the Software and/or Source Code or any related Intellectual Property Rights, except for the limited usage rights granted to Licensee in this Agreement. Licensee agrees, on behalf of itself and its affiliates, that Licensee and its affiliates will take no action inconsistent with Licensor’s Intellectual Property Rights.
5.2 The Software is protected by copyright, including without limitation by Copyright Law and international treaty provisions.
5.3 Licensee may private label the Licensee’s products with the Software contained therein solely under Licensee’s owned trademarks and trade names; provided that any copies of the Source Code that the Licensee is permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear therein.
5.4 Licensor hereby grants to Licensee a worldwide, non-exclusive, royalty-free license to use Licensor’s trademarks, service marks, trade names, and logos for the Software in connection with marketing, promoting and distributing the Software in accordance herewith. Licensee acknowledges that ownership to and all goodwill in the Licensor’s trademarks, service marks, trade names, and logos are vested exclusively in Licensor. Trademarks shall be used in accordance with accepted trademark practice as delivered in writing by Licensor to Licensee, including identification of trademarks owners’ names.
5.5 Notwithstanding anything set forth herein, Licensee shall own and have full title to all proprietary and intellectual property rights in all modifications, changes, additions, and other derivative works to the Software made by or on behalf of Licensee (collectively, the “Derivative Works”). Licensee hereby grants to Licensor a non-transferable, limited, royalty free license to use such Derivative Works solely for the purpose of providing support, maintenance, and professional services to Licensee pursuant to and in accordance with this Agreement. Other than as set forth in this paragraph, Licensor shall not assert any right, title, or interest in or to, or any proprietary or intellectual property rights in, the Derivative Works.
5.6 This Agreement is not an agreement of sale, and does not transfer any title, Intellectual Property Rights or ownership rights to the Software and/or Source Code to Licensee. Licensee acknowledges and agrees that the Software, Source Code, and all ideas, methods, algorithms, formulae, processes and concepts used in developing or incorporated into the Software and Source Code, and all other improvements, revisions, corrections, bug-fixes, hot-fixes, patches, modifications, enhancements, releases, signature sets, upgrades, and policy and database updates and other updates in, of, or to the Software or Source Code, and all copies of the foregoing are trade secrets and proprietary property of Licensor, having great commercial value to Licensor.
6. LICENSE TRANSFER
6.1 Other than as expressly set forth herein, this License is non-transferable to third parties (another person or legal entity). Following written authorization from Licensor, Licensee may assign this Agreement to a person or entity into which it has merged or which has otherwise succeeded to all or substantially all of its business and assets to which this Agreement pertains, by purchase of stock, assets, merger, reorganization or otherwise, and which has assumed in writing or by operation of law its obligations under this Agreement.
6.2 Other than as expressly set forth in this Agreement, the Licensee may not rent, lease, sublicense, lend or transfer any versions or copies of the Software or Source Code to third party entity or individuals.
7. MAINTENANCE POLICY
7.1 Following the date this Agreement is first executed below, this License includes one (1) year of upgrades, whether minor or major, and Urgent Support (live chat and email support, as well as optional sales support by phone in English and remote debugging). Check the Licensor’s Support Policy for more information on Urgent Support plan terms and conditions. In all cases, the Urgent Support and all other forms of support provided by Licensor shall be limited to a commercially reasonable extent, in the Licensor’s sole discretion. Licensor shall have sole discretion to determine what, if any, support, be it Urgent Support or otherwise, is commercially reasonable and/or included under the terms of this section.
7.2 Once the year of free Urgent Support and upgrades is expired, the Licensee may prolong access to these services by ordering a maintenance extension plan from Licensor. Contact Licensor’s Sales Department to renew the annual support and upgrade program.
7.3 The Licensee acknowledges that any obligation the Licensor may have to support the previous version of the Software is ended upon the distribution or availability of any update. The previous Software version(s) hosting and support are discontinued promptly following the release of any updated version of the Software.
8. WARRANTY AND INDEMNIFICATION
8.1 The Licensor provides the following Limited Warranty:
8.1.1 The Licensor owns the Software and documentation and/or is in possession of valid and existing licenses that support the terms of this Agreement;
8.1.2 To the best of the Licensor’s knowledge, the Software does not infringe upon or violate any intellectual property right of any third party;
8.1.3. The Software does not contain any back door, time bomb, drop dead device or other routine intentionally designed by the Licensor to disable a computer program, or computer instructions that alter, destroy or inhibit the processing environment;
8.1.4. During the six (6) month period following the date upon which this Agreement is last executed below, the Software licensed under this Agreement will perform substantially in accordance with the Documentation;
8.1.5. The Software does not contain any code that is licensed under any terms or conditions that impose any requirement that any software using, linked with, incorporating, distributed with, based on, derived from or accessing the software code: (a) be made available or distributed in source code form; (b) be licensed for the purpose of making derivative works; or (c) be redistributable at no charge.
8.2. EXCEPT FOR THE LIMITED WARRANTY, THE SOFTWARE IS PROVIDED “AS IS”. TO THE EXTENT PERMITTED BY LAW, LICENSOR MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE SOFTWARE AND SOURCE CODE AND DOCUMENTATION, AND LICENSOR DISCLAIMS ALL OTHER OBLIGATIONS AND LIABILITIES, OR EXPRESS OR IMPLIED WARRANTIES REGARDING THE SOFTWARE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SYSTEMS INTEGRATION. LICENSOR MAKES NO WARRANTY, REPRESENTATION OR GUARANTEE AS TO THE SOFTWARE’S USE OR PERFORMANCE, OR THAT THE OPERATION OF THE SOFTWARE WILL BE FAIL-SAFE, UNINTERRUPTED OR FREE FROM ERRORS OR DEFECTS; OR THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS.
LICENSOR GIVES NO WARRANTY, EXPRESS OR IMPLIED, THAT (I) OTHER THAN AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE WILL BE OF SATISFACTORY QUALITY, SUITABLE FOR ANY PARTICULAR PURPOSE OR FOR ANY PARTICULAR USE UNDER SPECIFIED CONDITIONS, NOTWITHSTANDING THAT SUCH PURPOSE, USE, OR CONDITIONS MAY BE KNOWN TO THE LICENSOR; OR (II) THAT THE SOFTWARE WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION OR THAT ANY ERRORS WILL BE CORRECTED.
8.3. Licensor Indemnification. Licensor shall defend, indemnify, and hold harmless Licensee and its subsidiaries and affiliates, and each of their respective employees, agents, officers and directors from any losses, liabilities, damages, demands, suits, causes of action, judgments, costs or expenses (including court costs and attorney fees) resulting from or directly or indirectly arising out of breach of any representation or warranty made herein or resulting from any claimed infringement or violation of any copyright, patent or any other intellectual property right with respect to the Software. Licensor agrees that Licensee shall have the right to participate in the defense of any such demand, suit or cause of action concerning matters that relate to Licensee and that such suit will not be settled without Licensee’s consent, such consent not to be unreasonably withheld.
8.4. Exclusions. Notwithstanding anything to the contrary in this Agreement, Licensor will not indemnify or defend or hold harmless Licensee for claims asserted, in whole or in part, against: (i)technology, designs, or requirements that Licensee gave to Licensor; (ii) Derivative Works, modifications or programming to Software that were made by anyone other than Licensor.
8.5. Licensee Indemnification.
Licensee will unconditionally indemnify and defend and hold harmless Licensor and its subsidiaries and affiliates, and each of their respective employees, agents, officers and directors from any losses, liabilities, damages, demands, suits, causes of action, judgments, costs or expenses (including court costs and attorney fees) resulting from any third-party claims arising from:
8.5.1 Licensee‘s failure to obtain any consent, authorization or license required for Licensor’s use of data, software, materials, systems, networks or other technology provided by Licensee under this Agreement;
8.5.2 Licensee’s use of the Software in a manner not expressly permitted by this Agreement;
8.5.3 Licensor’s compliance with any technology, designs, instructions or requirements provided by Licensee or a third party on Licensee’s behalf;
8.5.4 any violation by Licensee of applicable laws; and
8.5.5 any reasonable costs and attorneys’ fees required for Licensor to respond to a subpoena, court order or other official government inquiry regarding Licensee’s use of the Software.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL THE LICENSOR OR LICENSEE BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF THE DAMAGES WERE FORESEEABLE OR A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY.
EACH PARTY'S ENTIRE AGGREGATE LIABILITY TO THE OTHER PARTY FOR CLAIMS UNDER OR RELATED TO THE SUBJECT-MATTER OF THIS AGREEMENT WILL NOT EXCEED THE TOTAL PAYMENTS PAID OR PAYABLE BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT.
THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH CLAIMS ARISE UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY, STATUTE OR OTHERWISE. NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW
10. NON-WAIVER; GENERAL
10.1. If a portion of this Agreement is held unenforceable, the remainder shall be valid. It means that if one section of the Agreement is not lawful, the rest of the Agreement is still in force.
10.2. A party’s failure to exercise any right under this Agreement will not constitute a waiver of (a) any other terms or conditions of this Agreement, or (b) a right at any time thereafter to require exact and strict compliance with the terms of this Agreement. Any modifications to this Agreement must be in writing and signed by both parties. Neither party is responsible for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control. This Agreement supersedes prior discussions and agreements of the parties relating to the subject matter hereof. This Agreement sets forth all of the promises, agreements, conditions and understandings between the parties and constitutes the entire Agreement between the parties. No provisions of purchase orders or in any other documentation employed by or on behalf of either party in connection with these terms, including but not limited to a click-wrap or similar agreement included within the Software or otherwise delivered in connection with the software, regardless of the date of such documentation, will affect these terms, even if such document is accepted by the receiving party, with such provisions being deemed deleted.
10.3. Each party will comply with the applicable national, state and local laws with respect to its rights and obligations under this Agreement, including applicable privacy and export control laws and regulations, the U.S. Foreign Corrupt Practices Act, and other applicable anti-corruption laws.
10.4. Licensee will not, directly or indirectly, export, transmit, permit access or use any Software or technical data (or any part of the Software or technical data) or system or service incorporating any Software to or in any country to which export, transmission or access is restricted by regulation, statute or other law, without the authorization, if required, of the Bureau of Industry and Security of the U.S. Department of Commerce or any other competent governmental entity that may have jurisdiction over export or transmission. Licensee will not use, transfer or access any Software for end use relating to any nuclear, chemical or biological weapons, or missile technology unless authorized by the U.S. Government by regulation or specific license.
10.5. If Licensor receives notice that Licensee is or becomes identified as a sanctioned or restricted party under applicable law, Licensor will not be obligated to perform any of its obligations under this Agreement if such performance would result in violation of the sanctions or restrictions.
10.6. The parties are independent contractors under this Agreement and expressly disclaim any partnership, franchise, joint venture, agency, employer/employee, fiduciary or other special relationship. Neither party intends this Agreement to benefit, or create any right or cause of action in or on behalf of, any person or entity other than the parties and listed Affiliates. This Agreement is not intended to create a third-party beneficiary of any kind. Licensee shall not represent to any third party that Licensee has any right to bind Licensor in any manner and Licensee shall not make any representations or warranties on behalf of Licensor.
11. GOVERNING LAW
11.1. This Agreement shall be construed and controlled by the laws of the Commonwealth of Virginia, United States and the Licensor and the Licensee further consent to exclusive jurisdiction by the state and federal courts sitting in Virginia.
11.2. Process may be served on the Licensor and the Licensee by U.S. Mail, postage prepaid, certified or registered, return receipt requested, or by such other method as is authorized by Virginia law.
11.3. If either the Licensor or the Licensee employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees.
12. THE ENTRY INTO FORCE OF AGREEMENTS AND OTHER
12.1. This Agreement shall come into force on the date of last signature below.
12.2. The modification or supplement of this Agreement shall be agreed and signed in writing by both parties.
12.3 This Agreement is made in two (2) originals, each of which is held by one party.
In WITNESS WHEREOF the parties hereto have executed this Agreement by their authorized representative to be effective on the date last signed below. The Effective Date of this Agreement is the later of the dates written below.
LICENSOR: LICENSEE:
Electronic Team Inc. ____________________________
Signature: ___________________ Signature: ___________________
Name: ______________________ Name: ______________________
Title: ________________________ Title: _______________________
Date: _______________________ Date: _______________________