(a) License Grant. Subject to Licensee’s compliance with the terms and conditions of this Agreement, Neo Technology hereby grants Licensee a limited, personal, revocable, non-transferable, non-sublicensable, non-exclusive license during an “License Period” for which Licensee has paid the applicable fees to Neo Technology’s reseller to use, perform, publicly display, and reproduce the Software on the permitted number of Instances (as defined below) for which Licensee has paid to develop software applications (each, an “Application”) that Licensee uses: (i) for Licensee’s internal business purposes; and/or (ii) to provide Application-based products and services to third party end users (each, an “End User”). “Instance” means a Java™ Virtual Machine that runs the Software. The Software will be made available to Licensee under this Agreement in object code only; no source code is provided to Licensee under this Agreement. Without limiting any restrictions on Licensee’s use of the Software as set forth in Section 1(c) (Restrictions) below and elsewhere in this Agreement, Licensee is expressly prohibited from distributing any copy of the Software (whether in connection with an Application-based product or service or otherwise) to any third party.
(b) Terms. Notwithstanding the fact that Licensee may already have obtained an edition of the Software from Neo Technology prior to the Effective Date for Licensee’s use under separate software license terms such as the AGPL, GPL or any other open source license, to the extent Licensee uses the Software pursuant to the terms of this Agreement (as evidenced by Licensee entering into this Agreement), Licensee’s use of the Software is solely and exclusively governed by the terms of this Agreement.
(c) Restrictions. Licensee may not, and will not permit or induce any third party to: (i) decompile, reverse engineer, disassemble or otherwise attempt to reconstruct or discover the source code, underlying ideas or algorithms of any components of the Software; (ii) alter, modify, translate, adapt in any way, or prepare any derivative work based upon the Software; (iii) rent, lease, network, loan, pledge, encumber, sublicense, sell, distribute, disclose, assign or otherwise transfer the Software or any copy thereof; (iv) use the Software in commercial timesharing, rental or other sharing arrangements; (v) remove any proprietary notices from the Software or any related documentation or other materials furnished or made available hereunder; or (vi) run an Instance of the Software licensed hereunder in any project or system that also runs any edition of the Software licensed under the AGPL, GPL or any other open source license. In addition, Licensee agrees to comply with all applicable local, state, national, and international laws, rules and regulations applicable to Licensee’s use of the Software. Licensee shall not permit or induce any End User to download or copy the Software. Licensee acknowledges and agrees that the Software includes functionality that reports the number of Instances being used and permits Neo Technology the ability to provide support and monitor certain usage of the Software (“Critical Control Software”) which is fundamental to the business of Neo Technology.
(d) Proprietary Rights. Neo Technology or its licensors retain all right, title and interest in and to the Software and related documentation and materials, including, without limitation, all patent, copyright, trademark, and trade secret rights, embodied in, or otherwise applicable to the Software, whether such rights are registered or unregistered, and wherever in the world those rights may exist. Licensee shall not commit any act or omission, or permit or induce any third party to commit any act or omission inconsistent with Neo Technology’s or its licensors’ rights, title and interest in and to the Software and the intellectual property rights embodied therein or applicable thereto. All materials embodied in, or comprising the Software, including, but not limited to, graphics, user and visual interfaces, images, code, applications, and text, as well as the design, structure, selection, coordination, expression, “look and feel”, and arrangement of the Software and its content, and the trademarks, service marks, proprietary logos and other distinctive brand features found in the Software (“Neo Technology Marks”), are all owned by Neo Technology or its licensors; Licensee is expressly prohibited from using the Neo Technology Marks. Title to the Software shall not pass from Neo Technology to Licensee, and the Software and all copies thereof shall at all times remain the sole and exclusive property of Neo Technology. Licensee’s embedding or integration of the Software into an Application is not considered a derivative work. There are no implied rights or licenses in this Agreement. All rights are expressly reserved by Neo Technology.
(e) Third Party Software. Neo Technology may in its sole discretion, make available third party software (“Third Party Software”) embedded in, or otherwise provided with, the Software. Third Party Software is expressly excluded from the defined term “Software” as used throughout this Agreement. Licensee’s use of the Third Party Software is subject to the applicable third party license terms which can be viewed at www.neotechnology.com/thirdpartylicenses, and such Third Party Software is not licensed to Licensee under the terms of this Agreement. If Licensee does not agree to abide by the applicable license terms for the Third Party Software, then Licensee may not access or use the Software or the Third Party Software. Licensee is solely and exclusively responsible for determining if Licensee is permitted to use the Third Party Software in connection with any Application and Licensee should address any questions in this regard directly to the relevant Third Party Software licensor. Neo Technology makes no representation or warranty that Licensee is entitled to use the Third Party Software in connection with any Application.2. Term & Termination.
(a) Term. Subject to termination as set forth in this Section, the term of this Agreement will commence on the Effective Date and will continue until the end of the License Period.
(b) Termination. Neo Technology may terminate this Agreement immediately with or without notice if the Licensee breaches its obligations under this Agreement. Licensee may terminate this Agreement immediately by ceasing use of the Software.
(c) Effects of Termination. Upon the termination of this Agreement for any reason: (i) the licenses granted under this Agreement shall immediately terminate and unless Licensee and Neo Technology have entered into a subsequent written license agreement Licensee must cooperate with Neo Technology to promptly arrange for the return of the Software and all copies thereof to Neo Technology and Licensee shall cease to use the Applications; and (ii) within ten (10) calendar days of such termination, each party shall destroy or return all confidential and/or proprietary information of the other party in its possession, and will not make or retain any copies of such information in any form, except that the receiving party may retain one (1) archival copy of such information solely for purposes of ensuring compliance with this Agreement. Notwithstanding the foregoing, the following terms shall survive the termination of this Agreement, together with any other terms which by their nature are intended to survive such termination: Section 1(c) (Restrictions), 1(d) (Proprietary Rights), 1(e) (Third Party Software), 2(c) (Effects of Termination), 3(a) (“Confidentiality”), 3(b) (Feedback), 4 (Disclaimer of Warranties), 5 (Indemnification), 6 (Limitation of Liability) and 9 (General).3. Confidentiality & Feedback.
(a) Confidentiality. “Confidential Information” means any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure including, without limitation, the Software and any non-public technical and business information. Confidential Information does not include information that (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure. Licensee and Neo Technology will maintain the confidentiality of Confidential Information. The receiving party of any Confidential Information of the other party agrees not to use such Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and prevent disclosure and unauthorized use of the disclosing party’s Confidential Information using the same degree of care that it takes to protect its own confidential information and in no event shall use less than reasonable care. The receiving party may disclose the Confidential Information of the disclosing party if required by judicial or administrative process, provided that the receiving party first provides to the disclosing party prompt notice of such required disclosure to enable the disclosing party to seek a protective order. Upon termination or expiration of this Agreement, the receiving party will, at the disclosing party’s option, promptly return or destroy (and provide written certification of such destruction) the disclosing party’s Confidential Information.
(b) Feedback. To the extent Licensee sends or transmits any communications, comments, questions, suggestions, or related materials to Neo Technology, whether by letter, e-mail, telephone, or otherwise (“Feedback”) suggesting or recommending changes to the Software, including, without limitation, new features or functionality relating thereto, Licensee hereby grants Neo Technology a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under Licensee’s and its licensors’ intellectual property rights to reproduce, prepare derivative works of, distribute, perform, display, and otherwise fully use, practice and exploit such Feedback for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Licensee agrees and understands that Neo Technology is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and Licensee has no right to compel such use, display, reproduction, or distribution.4. Limited Software Warranty and Disclaimer.
Neo Technology represents and warrants to Licensee only (and not to any End User) that the Software when used for its intended purpose and in accordance with Neo Technology’s instructions, will materially conform to Neo Technology’s published specifications for a period of ninety (90) calendar days from the date Licensee is first permitted to access and use the Software. Licensee’s sole and exclusive remedy, and Neo Technology’s sole and exclusive liability for any breach of this warranty will be, at Neo Technology’s sole discretion, to either fix the Software to remedy the defect on the condition that Licensee promptly notifies Neo Technology in writing of any alleged breach of this warranty within such ninety (90) calendar day period. This warranty is null and void to the extent the Software: (i) fails to conform with this warranty as a result of its use with any third party hardware or software; or (ii) is used for an unintended purpose, is used other than in accordance with its published documentation or specifications, or is otherwise used in breach of this Agreement.
EXCEPT AS EXPRESSLY SET FORTH ABOVE IN THIS SECTION 4: (I) THE SOFTWARE IS PROVIDED TO LICENSEE ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND; AND (II) NEO TECHNOLOGY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NEO TECHNOLOGY DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL MEET LICENSEE’S OR ITS END USERS’ REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SOFTWARE AND SERVICES AND ALL RESULTS OF SUCH USE IS SOLELY AT LICENSEE’S AND ITS END USERS’ OWN RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NEO TECHNOLOGY OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO LICENSEE. IN SUCH EVENT, NEO TECHNOLOGY’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.5. Indemnification.
(a) Indemnification. Licensee hereby agrees to indemnify, defend and hold harmless Neo Technology and its parents, affiliates, subsidiaries, licensors, and third party service providers, and its and their respective officers, directors, employees, agents, representatives, and contractors (each, a “Neo Technology Party”), from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by any Neo Technology Party in connection with any actual or alleged claim arising out of, or relating to: (i) Licensee’s breach of this Agreement, any license applicable to the Third Party Software, or any applicable law, rule or regulation and (ii) Licensee’s gross negligence, fraudulent misrepresentation or willful misconduct.
(b) Procedure. Counsel Licensee selects for the defense or settlement of a claim must be consented to by Neo Technology prior to counsel being engaged to represent any Neo Technology Party. Licensee and Licensee’s counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by Neo Technology in the defense or settlement of any claim. Neo Technology reserves the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by Licensee. Licensee shall not in any event, consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of any Neo Technology Party without the prior written consent of each relevant Neo Technology Party.6. Limitation of Liability.
(a) Consequential Damages Waiver. UNDER NO CIRCUMSTANCES, SHALL ANY NEO TECHNOLOGY PARTY BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THE USE AND/OR INABILITY TO USE THE SOFTWARE, REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED AND EVEN IF A NEO TECHNOLOGY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Limitation of Damages. WITHOUT LIMITING THE FOREGOING, In no event shall THE Neo Technology PARTIES’ total CUMULATIVE liability to Licensee OR ANY THIRD PARTY for all damages, losses and causes of action (whether in contract, tort, including negligence AND STRICT LIABILITY, or otherwise) exceed THE AMOUNT OF two hundred and fifty dollars ($250.00).
(c) Liability for Third Party Software. if any liability attaches to ANY neo technology PARTY in respect of Third Party Software, such liability will be limited by this Section 6 and the disclaimer of warranties set forth in Section 4 above.
(d) Failure of Essential Purpose. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Some jurisdictions may not allow the exclusion or limitation of incidental, special, consequential, or other damages, so the above limitations or exclusions may not apply to LICENSEE. In such event, the liability of THE Neo Technology PartIES for such damages with respect to the Software AND CONSULTING services will be limited to the greatest extent permitted by applicable law in such jurisdiction. The sections of this Agreement that address indemnification, limitation of liability and the disclaimer of warranties allocate the risk between the parties. This allocation of risk is an essential element of the basis of the bargain between the parties.7. Government Rights.
The Software licensed to Licensee under this Agreement is “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.8. Export.
Licensee acknowledges that the laws and regulations of the United States of America and foreign jurisdictions may restrict the export and re-export of certain commodities and technical data of United States of America origin, including the Software. Licensee agrees that it will comply with all export control laws and regulations.9. General.
This Agreement will be construed and enforced in all respects in accordance with the laws of the state of California, without reference to its choice of law rules. Except as set forth below in this Section, the federal and state courts seated in San Francisco, San Mateo and Santa Clara Counties, California, will have sole and exclusive jurisdiction for all purposes in connection with any action or proceeding that arises from, or relates to, this Agreement, and each party hereby irrevocably waives any objection to such exclusive jurisdiction. Notwithstanding anything in this Agreement to the contrary, Neo Technology may seek injunctive or other equitable relief in any court of competent jurisdiction to protect any actual or threatened misappropriation or infringement of its intellectual property rights or those of its licensors, and Licensee hereby submits to the exclusive jurisdiction of such courts and waives any objection thereto on the basis of improper venue, inconvenience of the forum or any other grounds. Licensee agrees that any breach of the license restrictions or other infringement or misappropriation of the intellectual property rights of Neo Technology or its licensors will result in immediate and irreparable damage to Neo Technology for which there is no adequate remedy at law. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from this Agreement, including, without limitation, application to the Software provided hereunder. Furthermore, this Agreement (including without limitation, the Software provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA. Licensee consents to receive communications from Neo Technology electronically, including by e-mail and notices posted on the Site. Licensee agrees that all agreements, notices, disclosures, and other communications that Neo Technology provides to Licensee electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law. Licensee shall not assign this Agreement or transfer any of its rights hereunder, or delegate the performance of any of its duties or obligations arising under this Agreement, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Neo Technology. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. Except as otherwise specified in this Agreement, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any term of this Agreement is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all prior and/or contemporaneous representations, discussions, negotiations and agreements, whether written or oral, except to the extent Neo Technology makes any software or other products and services available to Licensee under separate written terms. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties, except that each Neo Technology Party shall be a third party beneficiary hereunder and accordingly, shall be entitled to directly enforce and rely upon any provision of this Agreement that confers a right or remedy in favor of it.