Back to home page The following license agreement will be sent to those members requesting
the free Granite Systems, Inc. Test Tools, and must be signed and returned to
Granite Systems, Inc. before the tool suite will be made available.
Software License Agreement (the "Agreement") dated as of
________ (the "Effective Date") by and between Granite Systems, Inc.,
a Colorado corporation ("Developer") with its principal place of
business located at 6982 Hunter Place, Boulder, CO 80301, and Salutation
Consortium Member,
_______________________________________(Member) with principal place of business
located at_________________________________________________.
1. DEFINITIONS.
The following terms have the following meanings in this
Agreement:
"Affiliate" means with respect to any entity, any other entity
controlling, controlled by or under common control of such entity.
"Contractor" of a company means a person or group of persons
(whether incorporated or not) providing services to that company as independent
contractors.
"Derivative Work" means a work which is based upon one or more
preexisting works, such as a revision, enhancement, modification, translation,
abridgment, condensation, expansion or other form in which an existing work may
be recast, transformed or adapted and which if prepared without authorization of
the owner of the copyright in such preexisting work, would constitute copyright
infringement.
"Documentation" means the information contained in
Developer’s “Salutation Test Tool Command Reference and Workbook”.
"Error" means any mistake, problem or defect that causes either
an incorrect functioning of Object Code or an incorrect or incomplete statement
or graphic in Documentation, if such mistake, problem or defect (a) renders the
Object Code inoperable, (b) causes the Object Code to fail to meet the
Specifications, (c) causes the Documentation to be inaccurate or inadequate in
any material respect, (d) causes incorrect results, or (e) causes incorrect
functions to occur.
"Internal Distribution" by a company means use by employees,
temporary employees, vendors and Contractors of the company and its
Subsidiaries; provided that any such distribution to Contractors shall only be
under written confidentiality agreement and does not include commercial testing
or certification services.
"Internal Testing Use" by a company means (a) use by employees
and temporary employees of the company and its Subsidiaries; and (b) use in
connection with the operation of the business of the company and its
Subsidiaries, by vendors and Contractors of the company and its Subsidiaries, in
each case for internal testing products and services of the company and its
Subsidiaries. Use in offering
commercial testing or certification services is not considered "Internal
Testing Use".
"Object Code" means machine-executable programming
instructions, substantially or entirely in binary form, which is intended to be
directly executable after suitable processing and linking but without the
intervening steps of compilation or assembly.
"Product" means Salutation Test Tools; and Documentation for
the foregoing; as described in Developer’s “Salutation Test Tool Command
Reference and Workbook”.
"Subsidiary" of an entity means a corporation, company or other
entity (a) more than fifty percent (50%) of whose outstanding shares or
securities (representing the right to vote for the election of directors or
other managing authority) are; or (b) which does not have outstanding shares or
securities, as may be the case in a partnership, joint venture or unincorporated
association, but more than fifty percent (50%) of whose ownership interest
(representing the right to make decisions for such corporation, company or other
entity) is; in each of (a) and (b) now or hereafter, owned or controlled,
directly or indirectly, by the entity in question, as the case may be, but such
corporation, company or other entity shall be deemed to be a Subsidiary only so
long as such ownership or control exists.
"Term" means the term of this Agreement, as it may be extended
or earlier terminated in accordance with Section 6.
2.
GRANT OF RIGHTS.
2.1
License to Object Code. Pursuant
to the agreement between Developer and Salutation Consortium, dated 12/2/1999,
Developer hereby grants Member and each Subsidiary of the foregoing a paid-up,
royalty-free, worldwide, nonexclusive, non-transferable license to execute the
Product Object Code solely for Internal Testing Use. Distribution and copying of
Product by Member or their Subsidiaries is restricted to Internal Distribution
only. This license does not extend to commercial testing or certification
services since these are not internal testing purposes.
Member may not reverse assemble, reverse compile, decode or translate the
Product.
2.2
Documentation. Developer
hereby grants Member and each Subsidiary of the foregoing a worldwide,
nonexclusive license to use, display, modify, and reproduce all Documentation
and Derivative Works of Documentation, internally in connection with grants of
licenses to the Product hereunder. Member
will place an internationally recognized copyright notice on the work sufficient
to protect the copyrighted material it contains.
2.3
Patents. All grants of
rights and licenses set forth in Sections 2.1 and 2.2 with respect to Product
include a grant of rights and licenses of the same scope in a party's patents,
if any, to the extent that the patents are performed by, the Product (including
its Object Code) or Documentation of Product, any portion of the foregoing.
2.4
Ownership of Code and Documentation.
As between Developer, on the one hand, and Member and Subsidiaries,
on the other, Developer, or its licensors as the case may be, retains ownership
of the Product.
3. SERVICE AND SUPPORT.
Developer will provide Member (i)
an initial thirty days of e-mail support at no cost and (ii) the ability for
Member to purchase support agreements beyond the initial 30-day period.
Support shall include timely qualified front-line technical support by
email to answer questions from customers consistent with the following
support obligations. Such support
includes installation assistance, problem identification and diagnosis, efforts
to identify defective Object Code and to provide corrections, workarounds and/or
patches to correct Errors in the Product ("Program Errors"). Requests
for support should be sent to [email protected].
Developer will make reasonable commercial efforts to
correct significant Program Errors that customers report to Developer during the
initial thirty day support period. Developer
will not be required to correct any Program Error caused
by (a) member’s incorporation or attachment of a feature, program, or device
to the Product, or any part thereof; (b) any nonconformance caused by accident,
transportation, neglect, misuse, alteration, modification, or enhancement of the
Product; (c) the failure to provide a suitable installation environment; (d) use
of the Product for other than the specific purpose for which the Product is
designed; (e) use of the Product on any systems other than the specified
hardware platform for such Product; or (f) customer's failure to incorporate any
update previously released by Developer which corrects such Program Error.
Developer reserves the right to charge customers additional fees at its
then-standard rates for services performed in connection with reported Program
Errors which are later determined to have been due to hardware of software not
supplied by Developer.
4.
RIGHT TO DEVELOP INDEPENDENTLY. Nothing
in this Agreement will impair either party's right to acquire, license, develop
for itself, or have others develop for it, similar technology performing the
same or similar functions as the technology contemplated by this Agreement, or
to market and distribute such similar technology in addition to, or in lieu of,
the Product, provided that in so doing such party makes no use of the Product.
5.
WARRANTIES.
5.1
Warranties of Developer. Developer represents and warrants to Member
that with respect to all subject matter, including ideas, inventions, creations,
works, processes, designs and methods, that Developer will disclose or use in
its performance of the services or the granting of any rights under this
Agreement, Developer warrants that it has the right to make such disclosure, use
and grant without liability to others. Developer
further warrants that (i) the
Product is or will be original with Developer; (ii) the Product does not and
will not infringe any patent rights, copyrights, mask work rights, trade secret
rights or other proprietary rights of others; (iii) Developer is the sole and
exclusive owner of the Product and any Derivative Works prepared by Developer
pursuant to this Agreement and the rights granted to Member in this Agreement.
5.2
Limitation of Liability.
(a)
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER
NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL MEMBER BE LIABLE TO
DEVELOPER OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT,
SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF MEMBER
SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY
ANY OTHER PERSON.
(b)
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER
NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL DEVELOPER BE LIABLE TO
MEMBER OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT,
SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF DEVELOPER
SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY
ANY OTHER PERSON.
(c)
PRODUCT
IS PROVIDED ON AN “AS IS” BASIS. DEVELOPER MAKES NO WARRANTY, EXPRESS OR
IMPLIED, INCLUDING INTELLECTUAL PROPERTY INFRINGEMENT AND THE IMPLIED WARRANTIES
OF MECHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.
TERM
6.1
Initial Term. The Term
will commence on the Effective Date and will continue through 4/30/2009, or
until terminated as provided in Section 6.
6.2
Termination by Member for
Convenience. Member may
terminate this Agreement for its convenience at any time, for any reason or for
no reason, by giving Developer written notice of termination.
Termination will become effective upon receipt of such notice by
Developer.
6.3
Termination By Either Party for Cause.
Either party will have the right to terminate this Agreement
immediately upon written notice at any time if the other party is in material
breach of any warranty, term, condition or covenant of this Agreement, which
breach materially adversely affects the benefits to the non-breaching party
under this Agreement, and the breaching party fails to cure that breach within
thirty (30) calendar days after written notice of that breach and of the
non-breaching party's intention to terminate; provided that if such breach
cannot be cured within such thirty (30) calendar day period, but (i) the breach
is capable of cure, and (ii) the breaching party diligently pursues such cure,
the breaching party shall have up to ninety (90) calendar days from the original
written notice to cure such breach. Termination
will become effective automatically upon expiration of the cure period in the
absence of a cure.
7.
GENERAL
7.1
Force Majeure. Neither
party will be liable for any failure or delay in its performance to fulfill its
obligations under this Agreement due to causes, including, but not limited to,
act of God, act of civil or military authority, fire, epidemic, flood,
earthquake, riot, war, sabotage, labor shortage or dispute, and governmental
action, which are beyond its reasonable control; provided that the delayed party
(a) gives the other party written notice of such cause promptly, and in
any event within fifteen (15) calendar days of discovery thereof; and (b) uses
its reasonable efforts to correct such failure or delay in its performance.
The delayed party's time for performance or cure under this Section 7.1
will be extended for a period equal to the duration of the cause and recovery
period.
7.2
Relationship of Parties. Neither party nor either party’s Members,
employees, consultants, Contractors or agents are agents, employees or joint
venturers of the other party, nor do they have any authority to bind the other
party by contract or otherwise to any obligation.
They will not represent to the contrary, either expressly, implicitly, by
appearance or otherwise. Developer is an independent contractor.
Developer will determine, in Developer's sole discretion, the manner and
means by which the services to be rendered under this Agreement are
accomplished, subject to the express condition that Developer will at all times
comply with applicable law.
7.3
No Use of Name or Trademarks. In
the absence of a separate agreement to the contrary, neither party shall be
entitled to use the name of the other in promotional, advertising and other
similar materials, it being understood that this shall not restrict either party
from reference to the relationship between the parties to the extent required by
law in connection with financial disclosure or similar requirements.
Neither party will, without the other's written consent, use the other's
trademarks, service marks, trade names, logos or other commercial or product
designations, for any purpose, including, but not limited to, use in connection
with any products, promotions, advertisements or exhibitions.
7.4
Assignment.
(a)
The rights and liabilities of the parties hereto will bind and inure to
the benefit of their respective successors, executors and administrators, as the
case may be; provided that neither party may assign or delegate its obligations
under this Agreement either in whole or in part, without the prior written
consent of the other, except (i) to any Subsidiary of such party so long as such
party remains responsible for such Subsidiary's performance or (ii) to a person
or entity into which it has merged or which has otherwise succeeded to all or
substantially all of the such party's business and assets to which this
Agreement pertains, any merger, reorganization or otherwise, and which has
assumed in writing or by operation of law its obligations under this Agreement.
(b)
Except as set forth in paragraph (a)(i) and (ii) above, Members may not
assign the Product without Developers prior written consent.
(c)
Any attempted assignment in violation of the provisions of this Section
will be void.
7.5
Limitation Of Remedies. In
no event will either party be liable to the other for indirect, incidental or
special damages, lost profits, lost savings, incidental damages or any other
consequential damages, regardless of the form of action, even if that party has
been advised of the possibility of such damages, resulting from breach of its
obligations under this Agreement or from the use of any confidential or other
information or any items or products supplied pursuant to this Agreement. In
addition, Developer will no be liable for any damages claimed by Member based on
any third party claim. In no event will Developer be liable for any damages
caused by Member’s failure to perform Member’s responsibilities.
7.6
Equitable Relief. Because
a breach this Agreement would cause irreparable harm and significant injury
which would be difficult to ascertain and which would not be compensable by
damages alone, the parties agree that any party will have the right to enforce
those provisions by injunction, specific performance or other equitable relief
without prejudice to any other rights and remedies the enforcing party may have
for another party’s breach of this Agreement.
7.7
Limitation of Actions. No
actions or arbitration proceeding, regardless of form, arising out of this
Agreement may be brought by either party more than eighteen months after the
cause of action has arisen; provided, however, with respect to any action
brought by one party against another party, the party against whom the action
was brought may claim the benefit of any applicable statute of limitations that
is less than eighteen months in duration. In the event of the termination or
expiration of this Agreement, the provisions of this Agreement which by their
nature extend beyond termination or expiration of this Agreement shall remain in
effect beyond such termination or expiration until fulfilled.
7.8
Arbitration. Except as
set forth in this Section, any controversy, claim or dispute arising out of or
related to this Agreement, or the breach or alleged breach hereof, will be
submitted by the parties to arbitration by the American Arbitration Association
in Boston, Massachusetts, in accordance with the commercial arbitration rules
then in effect of the American Arbitration Association by three (3) arbitrators
appointed in accordance with said rules. The
decision of the arbitrators shall be final and binding, and judgment on the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The award
rendered by the arbitration board shall include costs of arbitration, reasonable
attorneys' fees and reasonable costs for expert and other witnesses.
The parties shall be entitled to discovery as provided in Federal Rules
of Civil Procedure. All proceedings shall be held in English and a transcribed
record of the proceedings shall be prepared in English. Nothing in this
Agreement shall prevent either party from seeking injunctive relief (or any
other provisional remedy or equitable relief) from any court having jurisdiction
over the parties and the subject matter of the dispute to protect their
respective intellectual property rights. The venue for any arbitration or court
action is in the State of Colorado.
7.9
Applicable Law. The validity, construction and performance of this Agreement will be
governed by and construed in accordance with the laws of the State of Colorado .
With respect to any suit, action or other proceeding arising out of this
Agreement, or any other transaction contemplated thereby, the parties hereto
expressly waive any right they may have to a jury trial and agree that any
proceeding under this Agreement which is not subject to arbitration shall be
tried by a judge without a jury. The
parties agree to non-exclusive personal jurisdiction and venue of the United
States District Court for the State of Colorado
7.10
Severability. If any
provision of this Agreement shall be held to be illegal, invalid or
unenforceable, that provision of the Agreement will be enforced to the maximum
extent permissible so as to effect the intent of the parties, and the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
7.11
Notices. All notices,
demands, requests or other communications that may be or are required to be
given, served or sent by any party pursuant to this Agreement will be in writing
(and shall be deemed to have been duly given upon receipt), will reference this
Agreement and shall be mailed by first class, registered or certified mail,
return receipt requested, postage prepaid, or transmitted by express courier or
hand delivery or facsimile transmission, addressed to the parties at the address
set forth in the preamble to this Agreement.
Each party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served or
sent. Each notice that is mailed,
delivered or transmitted in the manner described above shall be deemed
sufficiently given, served, sent and received for all purposes at such time as
it is delivered to the addressee (with the return receipt, the delivery receipt
or the affidavit of messenger or courier being deemed conclusive evidence of
such delivery) or at such time as delivery is refused by the addressee upon
presentation.
7.12
No Waiver. Failure by
either party to enforce any provision of this Agreement will not be deemed a
waiver of future enforcement of that or any other provision.
7.13
No Rights in Third Parties. This
Agreement is made for the benefit of Developer and Member and their respective
subsidiaries and affiliates, if any, and not for the benefit of any third
parties
7.14
Counterparts. This
Agreement may be executed in one or more counterparts, each of which will be
deemed an original, but which collectively will constitute one and the same
instrument.
7.15
Headings and References. The
headings and captions used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this Agreement.
References to Sections without decimals (such as "Section 2")
shall include all sections numbered with decimals in such Section (i.e. Section
2.1, 2.2, etc.).
7.16
Construction. This
Agreement has been negotiated by the parties and their respective counsel.
This Agreement will be interpreted fairly in accordance with its terms
and without any strict construction in favor of or against either party.
7.17
Complete Agreement. This
Agreement, including all exhibits, constitutes the entire agreement between the
parties with respect to the subject matter hereof, and supersedes and replaces
all prior or contemporaneous understandings or agreements, written or oral,
regarding such subject matter. No
amendment to or modification of this Agreement will be binding unless in writing
and signed by a duly authorized representative of both parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first set forth above.
GRANITE
SYSTEMS, INC.
By
______________________
Name
Michael D. Osborn
Title
President
SALUTATION
CONSORTIUM MEMBER:
_____________________________
(name
of entity)
By
______________________
Name
____________________
Title
_____________________
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