Source Code Licensing and Confidentiality Agreement
SOURCE CODE LICENSING AND CONFIDENTIALITY AGREEMENT
This Source Code License and Confidentiality Agreement (“Agreement”) is made (on the date of download or other access) by and between (“Licensee”, the client) and Quale Designs (“Quale Designs”, “QualeDesigns”, “Quale”, OR “QD”) with its principal place of business located at VLINDERSTRAAT 15, 5345EA OSS, THE NETHERLANDS.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1.1. “Source Code” shall mean (i) all source code provided or made available to Licensee pursuant to this Agreement and pursuant to Licensee purchasing prior valid Quale Designs license(s) and prior agreement to the Quale Designs End User License Agreement (“EULA”) when order (be it free or paid) is placed, and (ii) such source code’s structure and organization, and (iii) all related documentation, developer’s notes and database schema, if any, provided or made available to Licensee pursuant to this Agreement, and (iv) any copies (both electronic and paper) made thereof by or on behalf of Licensee.
1.2. “Compiled Application” means the executable program run from unmodified Source Code.
1.3. “Derivative Works” shall have the meaning set forth in the United States Copyright Act, 17 U.S.C. Section 101, et seq.
2. LICENSEE RIGHTS AND RESTRICTIONS.
2.1. Grant of License.
2.1.1. Subject to Licensee’s strict compliance with the terms and conditions of this Agreement, Quale Designs hereby grants to Licensee (i) a non-exclusive, non-transferable, limited license under Quale Designs copyrights in the Source Code to internally reproduce the Source Code and create derivative works based upon the Source Code for the sole purposes of providing maintenance support or developing new functionalities, features, procedures, routines, or customizations that are not available in the Compiled Application (“Enhancements”), (ii) a non-exclusive, non-transferable, limited license to use the Enhancement for internal purposes in connection with Licensee’s use of the Quale Designs Software (“Software”), and (iii) a non-exclusive, non-transferable, limited license to sublicense the use of the Enhancement to Licensee’s clients who are also properly licensed to use the Quale Designs Software (“Permitted Clients”).
2.1.2. Licensee understands and acknowledges that Quale Designs may develop and/or market for itself the same or similar Enhancements, and may grant a third person or entity the right to develop and/or market the same or similar Enhancements, and that Quale Designs has made no promises to the contrary.
2.2. Restrictions and Requirements of Use.
2.2.1. Except as expressly provided in Section 2.1, no other license or right in the Source Code is granted to Licensee under this Agreement directly or by implication or otherwise. Without limiting the generality of the foregoing and notwithstanding anything to the contrary in this Agreement, Licensee may not:
18.104.22.168. Remove any copyright notice, proprietary information notices, or other notice (collectively, “Copyright Notice”) provided by Quale Designs, including, without limitation, any Copyright Notice contained in the Source Code provided by Quale Designs;
22.214.171.124. Publically utilize (accessible -and in use- without the need of any privately (by the end-user) stored credentials, e.g. Google search engine, OR in the form, or part of a publically accessible consumer electronics device e.g. ATM, PhotoBooth, Public Transport Card Readers) the Source Code with (partially) malfunctioning functionality where Licensee obtained Source Code from Quale Designs as part of a Copyright Notice license (be it free or paid).
126.96.36.199. Assign, sublicense, lease, or in any other way transfer or disclose the Source Code to any third party, including, without limitation, (i) to any Permitted Clients, (ii) to independent contractors or developers (Third Parties), or (iii) as part of the Enhancements, unless specifically authorized in writing, by having each Third Party execute the Subcontractor Addendum to the subcontractor agreement, which will be provided within a respectable timely manner, upon request by Licensee.
188.8.131.52. Utilize the Source Code in a manner to prepare, draft, or assist third parties in preparing or drafting software that is similar to the Software subject to this License that is intended for sale, license, or distribution to others (whether that distribution be for profit or free) in a manner that would compete directly or indirectly with Quale Designs products; or
184.108.40.206. Reproduce or use any part of the Source Code, Compiled Application, or use the Software except as provided in this Agreement; or
220.127.116.11. Reproduce, modify, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form.
2.2.2. The restrictions set forth in Section 2.2.1 shall apply equally to attempts to perform the restricted activities, regardless of whether or not any such attempt is successful.
2.3.1. Licensee agrees and acknowledges that the Source Code is: (i) proprietary to Quale Designs; (ii) is of significant value to Quale Designs; (iii) is not publicly available; (iv) contains trade secrets of Quale Designs; and (v) constitutes the confidential information of Quale Designs. Licensee shall comply with the following restrictions on use of the Source Code and shall maintain the Source Code in accordance with the following (Security) procedures:
18.104.22.168. Licensee shall use commercially reasonable measures to preserve the security and confidentiality of the Source Code, including, without limitation, securing the network, server, hard drives, and other media on which the Source Code is stored or maintained.
22.214.171.124. Licensee shall limit access to the Source Code to its employees who have a need to access the Source Code for the purposes of exercising Licensee’s rights under this Agreement (each, an “Authorized Person”) and to its independent contractors (and developers (Third Parties), if any, who are approved by Quale Designs pursuant to Section 126.96.36.199 (each, an “Authorized Independent Contractor”). Without limiting the foregoing, no Authorized Person or Authorized Independent Contractor may have access to the Source Code unless and until: (i) he or she has been apprised of and acknowledges the confidential and proprietary nature of the Source Code; (ii) has been trained with respect to the procedures designed to preserve its confidentiality; (iii) and is subject to a binding and enforceable obligation neither to use the Source Code (other than for purposes expressly permitted by this Agreement) nor to disclose such Source Code to any person or entity other than a person similarly authorized to access the Source Code.
188.8.131.52. Licensee shall use commercially reasonable measures to preserve the functionality of the Source Code in case of Source Code distributed with the exclusive use of “Copyright Notice” be it free or paid, including, without limitation, securing the network, server, hard drives, and other media on which the Source Code is stored or maintained.
184.108.40.206. Licensee shall conduct periodic reviews to ensure compliance with the foregoing (Security) requirements. Quale Designs shall have the right to conduct a review of Licensee on Licensee’s premises to ensure compliance with the foregoing (Security) restrictions, including an inspection of the records and agreement maintained by Licensee pursuant to subsection 220.127.116.11 above, provided that Quale Designs provides at least three (3) business days prior written notice.
2.3.2. Licensee shall be jointly and severally responsible for any violation of any of the confidentiality obligations set forth in this Agreement by any of its employees, contractors and third parties acting on its behalf.
2.4. Injunctive Relief. Licensee acknowledges and agrees that Quale Designs will suffer irreparable damage in the event of a breach by Licensee of the terms of Sections 2.3 or 2.4 of this Agreement and that Quale Designs will be entitled to injunctive relief (without the necessity of posting a bond or proving actual damages) in the event of any such breach.
2.5. Indemnification. Licensee hereby agrees to indemnify, defend and hold harmless Quale Designs and its directors, officers, shareholders, partners, affiliates, employees, representatives and agents from and against any loss, fines, fees, settlements, judgments, costs, expenses (including, without limitation, reasonable attorneys’ fees, court costs, and administrative fees), and any other liability arising out of or related to any claim, demand, or cause of action asserted by any third party arising out of or related to Licensee’s use of the Enhancements.
3. LICENSE FEES
3.1. License Fees. Licensee will pay to Quale Designs the license fee(s) for source as follows [per]: (a) The amount paid when Licensee placed their “with source” or “add source” order on the Quale Designs website, or (b) in the times and amounts set forth in Exhibit A (“License Fees”) by prior special agreement with Quale Designs.
3.2. Payment Procedures. Any payments due hereunder shall be made in U.S. currency. Licensee shall pay the amount invoiced by Quale Designs within thirty (30) days of the invoice date without deduction or offset of any kind. All payments by Licensee to Quale Designs pursuant to this Agreement shall be made by wire transfer to the bank and account number or to such other place or in such other manner as Quale Designs may from time to time specify by written notice to Licensee.
3.3. Late Fees. Licensee will be responsible for a late fee of 1.5 % per month (or the maximum rate allowed by applicable law if it is less) on any amount not paid when due, unless and to the extent such amount is disputed in good faith and the parties are actively seeking a resolution to such dispute.
3.4. Taxes. The charges required to be paid hereunder do not include any amount for taxes, duties or import/export fees. Licensee shall be solely responsible for, and shall pay or reimburse Quale Designs for the payment of, all sales, use, value added, excise, property, or other taxes or levies, duties or import/export fees, if any, that Quale Designs is required to collect or remit to applicable tax authorities (including any interest or penalties thereon). This provision does not apply to Quale Designs income or franchise taxes. The parties shall reasonably cooperate to obtain any applicable exemption certificates that exempt Licensee or the transaction hereunder from the taxes referred to in this section. Licensee shall defend, indemnify, and hold Quale Designs harmless from any claims, penalties, fees, and other liability resulting from Licensee’s breach of its obligations set forth in this section.
4. INTELLECTUAL PROPERTY.
4.1. Existing Intellectual Property. As between the parties, Quale Designs is and shall be the exclusive owner of all right, title and interest in and to (i) the Software and the Source Code, and (ii) all patent, copyright, trademark, trade secret, and any and all other protectable intellectual property and proprietary rights both now and in the future, whether or not registered or perfected (but to the extent existing, all registrations, applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force), and whether arising by operation of law, contract, or otherwise (collectively, “Intellectual Property Rights”) in and to the foregoing (the “Existing Intellectual Property”). The Software and Source Code are protected by copyright and other applicable laws, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Licensee may not copy or use the Software or Source Code except as permitted herein. Licensee agrees not to modify, adapt or translate the Software or Source Code except as permitted herein. Any information or documentation supplied by Quale Designs or otherwise obtained by Licensee in connection with or as a result of this Agreement may only be used by Licensee for the purpose described herein and may not be disclosed to any third party (except as permitted herein) or used to create any software which is substantially similar to the Software.
4.2. New Intellectual Property. As between the Parties, any right, title and interest to any Enhancements, updates, and modifications shall be owned by the Party who created them; with respect to Enhancements, updates, and modifications, that are jointly created, they shall be owned by Quale Designs and Licensee shall be granted a license to use those jointly created Enhancements, updates, and modifications in accordance with this Agreement and the prior agreed EULA. In no event shall any rights in the Quale Designs Source Code vest or otherwise transfer to Licensee and Licensee acknowledges that any ownership of Enhancements, updates, and modifications shall be limited to the Enhancements, updates, and modifications and not the underlying Quale Designs Source Code.
4.3. Cooperation. The Parties agree to mutually cooperate with one another in attempts to obtain, perfect, or register any New Intellectual Property owned by one another as outlined in Section 4.2. In connection with the foregoing, the Parties agree to execute any documents of assignment, registration, and recordation as may be necessary to perfect, or protect, the rights assigned to each Party hereunder in each country in which the assignee Party desires, and ensure that the Parties respective employees and permitted contractors, are bound by and abide by the terms and conditions of this provision and have executed all agreements necessary to obtain, perfect, or register the New Intellectual Property.
5. WARRANTY, WARRANTY DISCLAIMER, AND LIMITATION OF LIABILITY.
5.1. Mutual Representations. Each party represents and warrants (i) that such party is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) that such party has the legal right and authority to enter into and perform its obligations under this Agreement; (iii) that, to the best of its knowledge, the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such party; and (iv) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
5.2. Warranty Disclaimer. Except as specifically set forth in Section 5.1 above, no further warranty of any kind is being provided by Quale Designs, including, without limitation, any warranty that the Software and Source Code shall be free from defects in design, material or workmanship. LICENSEE ASSUMES TOTAL RESPONSIBILITY FOR THE USE OF THE SOFTWARE AND SOURCE CODE, AND THE SOFTWARE AND SOURCE CODE ARE PROVIDED ON AN “AS-IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 5.1, THE SOFTWARE AND SOURCE CODE ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND WHETHER ARISING UNDER LAW OR FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE (COLLECTIVELY, “DISCLAIMED WARRANTIES”), INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED BY ASPDOTNETSTOREFRONT AND FOREVER WAIVED BY LICENSEE. NO ADVICE OR INFORMATION GIVEN BY ASPDOTNETSTOREFRONT, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY OR OBLIGATION OF ASPDOTNETSTOREFRONT. In the event that any of the Disclaimed Warranties cannot be disclaimed or waived under applicable law, Licensee’s sole and exclusive remedy for breach of such Disclaimed Warranty will be, at Quale Designs sole discretion, either (i) the replacement of the Source Code, at no additional cost to Licensee, or (ii) the refund of any License Fees actually paid by Licensee under this Agreement.
5.3. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ASPDOTNETSTOREFRONT SHALL NOT BE LIABLE TO LICENSEE, AND LICENSEE COVENANTS THAT IT WILL NOT ASSERT A CLAIM AGAINST ASPDOTNETSTOREFRONT, UNDER ANY LEGAL THEORY, WHETHER IN AN ACTION BASED ON A CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE PROVIDED BY STATUTE OR LAW, (i) FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR STATUTORY DAMAGES, OR ANY DAMAGES RESULTING FROM LOST PROFITS, INTERRUPTION OF BUSINESS, OR LOSS OF GOODWILL, EVEN IF ASPDOTNETSTOREFRONT HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) FOR DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT IN AN AMOUNT THAT EXCEEDS THE LICENSE FEES ACTUALLY PAID BY LICENSEE UNDER THIS AGREEMENT. LICENSEE HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.
5.4. Basis of Bargain. The parties hereby acknowledge and agree that the warranty disclaimers and limitation of liability provisions set forth above have been negotiated and are fundamental elements of the basis of this Agreement, and Quale Designs would not be able to provide the licenses granted herein at the price and on the other terms and conditions currently offered without such limitations. The parties further agree that such provisions will inure to the benefit of the other party’s successors and permitted assigns.
6. TERM AND TERMINATION.
6.1. Term. The term of this Agreement and the licenses granted herein shall begin on the effective date of this Agreement and shall continue as long as Licensee is using Quale Designs software or until the earlier termination of this Agreement pursuant to the provisions set forth herein.
6.2. Event of Default. Each of the following shall constitute an event of default (“Event of Default”) under this Agreement: (a) Licensee fails to pay any amount due under this Agreement within ten (10) days of the date such amount is due; (b) an uncured material breach by either party of this Agreement, provided that the non-breaching party has notified the breaching party of the Event of Default and afforded the breaching party at least ten (10) days to cure such breach; and (c) Licensee is acquired by or merges with, or begins discussions to become acquired by or merged with, a competitor to Quale Designs. A competitor is defined as any company or individual selling or offering (be it free or paid) products defined in the web design space, game development space, software programming space, software creation space, software testing space, e-commerce space, or “shopping cart” space to customers, as standalone products, or as integrated offering with a service or other product.
6.3. Termination upon Event of Default. If an Event of Default occurs, the non-breaching party (or Quale Designs in the event of an Event of Default pursuant to Sections 6.2(a) or (c)) may, in its sole discretion, terminate this Agreement. In such event, the non-terminating party shall pay to the terminating party all costs and expenses (including reasonable legal fees and costs and fees of collection agencies, if any) incurred by the terminating party in connection with such termination.
6.4. Effect of Termination. Upon termination or expiration of this Agreement for any reason whatsoever, Licensee shall immediately: (i) cease all use of the Source Code; and (ii) within ten (10) days, return or destroy (and have an authorized officer certify such destruction) the Source Code, including without limitation, removing all copies of Source Code from Licensee computers and storage media. In addition to the foregoing, Licensee agrees that it shall not, following termination or expiration of this Agreement, act in any way to damage the reputation or goodwill of Quale Designs, the Software, any Enhancement, or any other product or software offered by Quale Designs.
7.1. Assignment. Licensee may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Quale Designs, such consent to be given at its sole discretion. Any attempted assignment without such prior written consent shall be void. Quale Designs may assign all or part of this Agreement immediately, without the prior written consent of Licensee (i) to any successor in interest to Quale Designs who assumes responsibility for Quale Designs’ obligations hereunder; or (ii) if necessary to satisfy the rules, regulations and/or orders of any federal, state or local governmental agency or body.
7.2. Dispute Resolution. Any dispute relating to this Agreement shall be submitted for binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association and its Optional Procedures for Large, Complex Commercial Disputes. The arbitration shall be heard and determined by a panel of three (3) arbitrators selected by the AAA, and each such arbitrator shall be an attorney having experience and familiarity with information technology disputes. Judgment on any award entered therein may be entered in any court of competent jurisdiction. The venue for any such arbitration shall be in Den Haag, THE NETHERLANDS, or Oregon, USA. In all cases, each party shall bear its own costs relating to such arbitration, and the parties shall equally share the arbitrators’ fees unless provided otherwise in this Agreement or otherwise determined by the arbitrator, and the arbitration and all related proceedings and discovery shall take place pursuant to a protective order entered by the arbitrators that adequately protects the confidential nature of the parties’ proprietary and confidential information. In no event shall any arbitration award provide a remedy beyond those permitted under this Agreement, and any award providing a remedy beyond those permitted under this Agreement shall not be confirmed, no presumption of validity shall attach, and such award shall be vacated. This agreement shall be governed by and construed in accordance with the laws of the state of Delaware, excluding its conflicts of laws provisions.
7.3. Severability. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be amended to reflect, to the greatest extent permitted under applicable law, the original intent of the parties, and the remainder of the provisions shall remain in full force and effect.
7.4. Waiver. Either party’s failure to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of that or any other of its rights hereunder at any later date or time.
7.5. Force Majeure. With the exception of any payment obligations, neither party shall be liable for failing to perform its obligations hereunder (other than payment obligations) where delayed or hindered by war, riots, embargoes, strikes or acts of its vendors or suppliers, accidents, acts of God, or any other event beyond its reasonable control.
7.6. Notices. All notices including notices of address changes contemplated hereunder shall be deemed received on the third day after mailing if sent by mail, or immediately if sent by facsimile. Notices shall be sent to the addresses on the signature page hereof.
7.7. Survival. All terms and provisions of this Agreement that should by their nature survive the termination shall so survive.
7.8. Counterparts. This Agreement may be executed in separate counterparts including facsimile copies, each of which shall be deemed an original, and all of which shall be deemed one and the same instrument and legally binding upon the parties.
7.9. Entire Agreement. Each Exhibit is hereby incorporated by reference into this Agreement as if fully rewritten herein. This Agreement, including any Exhibits attached hereto and made part hereof, constitutes the entire agreement between Licensee and Quale Designs with respect to the subject matter hereof. This Agreement supersedes any prior agreements, representations, or dealings between the parties.
7.10. Amendment. Quale Designs reserves the right at any time to modify this Agreement without notice and to impose new or additional terms or conditions on your use of the Software. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Software will be deemed acceptance thereof. Updated terms and conditions may be found at https://quale.nl/meer-informatie/terms-and-conditions/.
7.11. Construction. The provisions of this Agreement are the product of discussion and negotiation by the parties, and no provision may be construed against either party by reason of its drafting of such provision.
7.12. Headings. The section headings herein are for convenience and reference purposes only and shall not serve as a basis for construction or interpretation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by a duly authorized representative effective as of the date set forth at the top of this Agreement.
Release of Source Code Requires Prior Fully Paid Valid Quale Designs “With Source” License
Source code is hereby provided only in connection with (non-source code) Quale Designs software which licensee has purchased prior to executing this Source Licensing Agreement.
Release of Source Code Requires Adherence to Quale Designs software End User License Agreement (EULA)
Release of source code does NOT allow Licensee to use source code except in conjunction with those Quale Designs licenses. Release of source code does NOT release Licensee from our requirement of having a valid, paid in full, license for each Quale Designs installed, or used, by Licensee per the Quale Designs EULA. The terms of this Agreement augment those terms and conditions set forth in the EULA. The EULA was accepted by Licensee when purchasing, or having legally acquired, (be it free or paid) the Quale Designs licenses.
Release of Source Code Does Not Entitle Licensee to Updates Beyond Quale Designs License Terms
Licensee is entitled to source code for only those versions of Quale Designs software to which they would normally be entitled based upon their initial purchase and any additional support or upgrade Quale Designs software license purchases made by Licensee.
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