Comparison of OEM Agreements

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PRO OEM

PRO SUPPLIER

WHEREAS, OEM develops and markets certain software and other computer-related products and services and desires to include Supplier's software product as a component of OEM's product or services.

WHEREAS, OEM develops and markets certain software and other computer-related products and services and desires to include Supplier's software product as a component of OEM's product or services.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following terms and conditions, which set forth the rights, duties, and obligations of the parties.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following terms and conditions, which set forth the rights, duties, and obligations of the parties.

1.         DEFINITIONS. 

1.         DEFINITIONS. 

The following terms, when used with initial capital letters in this Agreement, shall have the following definitions, unless the context in which the term is used expressly provides otherwise.

The following terms, when used with initial capital letters in this Agreement, shall have the following definitions, unless the context in which the term is used expressly provides otherwise.

 

"Bundled Products/Services" means the combination of the Supplier Products and OEM Products/ Services that OEM will market and sell as a single product offering. 

"Derivative Works" means a revision, modification, translation, abridgment, condensation or expansion of the Supplier Product or Documentation or any form in which the Supplier Product or Documentation may be recast, transferred, or adapted, which, if prepared without the consent of Supplier, would be a copyright infringement.

"Derivative Works" means a revision, modification, translation, abridgment, condensation or expansion of Supplier Products or Documentation or any form in which Supplier Products or Documentation may be recast, transferred, or adapted, which, if prepared without the consent of Supplier, would be a copyright infringement.

"Distributor" means any third party which acquires possession of the Supplier Product from OEM and is not a Reseller or End User and distributes it to a Reseller.

"Distributor" means any third party which acquires possession of Supplier Products from OEM and is not a Supplier Reseller or End User and distributes such media, Supplier's end user license agreement, and OEM Product to a Reseller.

"Documentation" means those software user manuals, reference manuals and installation guides, or portions thereof, which are distributed in conjunction with the Supplier Product including but not limited to those set forth in Exhibit A.

"Documentation" means those software user manuals, reference manuals and installation guides, or portions thereof, which are distributed in conjunction with the Supplier Products set forth in Exhibit A.

"End User" means an entity that acquires the Supplier Product for Internal Use and is not an affiliate of OEM's enterprise.  "End User" does not include an entity that distributes, resells, sells, licenses, rents or leases the Supplier Product to other parties in the regular course of business.

"End User" means an entity that acquires the Supplier Products for Internal Use and is not an affiliate of OEM's enterprise.  "End User" does not include an entity that distributes, resells, sells, licenses, rents or leases Supplier Products to other parties in the regular course of business.

"Expiration Date" means the date identified as the expiration of the term of this Agreement, as set forth in paragraph 3 below.

"Expiration Date" means the date identified as the expiration of the term of this Agreement, as set forth in paragraph 3 below.

"OEM" means _________________.

 

"Internal Use" means use for purposes that do not directly produce revenue for the user.

"Internal Use" means use for purposes that do not directly produce revenue for the user.  "Internal Use" does not include timesharing.

"Major and Minor Updates" means updates, if any, to the Supplier Product.  Major Updates involve additions of substantial functionality while Minor Updates do not. Major Updates are customarily designated by a change in the number to the left of the decimal point of the number appearing after the product name while Minor Updates are customarily designated by a change in such number to the right of the decimal point.  Major Updates exclude software releases which are reasonably designated by Supplier as new products.  Where used herein “Updates” shall mean Major Updates or Minor Updates interchangeably.

"Major and Minor Updates" means updates, if any, to the Supplier Products.  Major Updates involve additions of substantial functionality while Minor Updates do not. Major Updates are designated by a change in the number to the left of the decimal point of the number appearing after the product name while Minor Updates are designated by a change in such number to the right of the decimal point.  Supplier is the sole determiner of the availability and designation of an update as a Major or Minor Update.  Major Updates exclude software releases which are reasonably designated by Supplier as new products.  Where used herein "Updates" shall mean Major Updates or Minor Updates interchangeably.

"Marks" means Supplier's trademarks, service marks, logos, designations and insignias.

"Marks" means Supplier's trademarks, service marks, logos, designations and insignias.

 

"OEM" means the customer identified as an Authorized OEM in this Agreement.

"Object Code" means any computer programming code that loads and executes without further processing by a software compiler or linker or that results when Source Code is processed by a software compiler.

 

"Program Errors" means any mistake, problem or defect that causes either an incorrect functioning of the Supplier Product or an incorrect or incomplete statement or graphic in Documentation, including any mistake, problem or defect that (a) renders the Supplier Product inoperable, (b) causes the Supplier Product to fail to meet any specifications or acceptance tests, (c) causes the Documentation to be inaccurate or inadequate in any material respect, (d) causes incorrect results, or (e) causes incorrect functions to occur.

"Program Errors" means one or more reproducible(on a Supplier supported platform) deviations in the Supplier Products from the applicable specifications shown in the Documentation.

"Reseller" means any third party which is not a Distributor but acquires the Supplier Product from OEM or an authorized Distributor and resells, licenses, rents, or leases to End Users.

"Reseller" means any third party which is not a Distributor but acquires Supplier Products from OEM or an authorized Distributor and resells, licenses, rents, or leases to End Users.

"sale," "sell" and other similar terms, when used in connection with the marketing and distribution of the Supplier Product shall mean the granting of a license or sublicense and shall not be deemed for any purpose to mean a transfer of title or other rights of ownership to the Supplier Product, other than the rights to copy and use as specifically set out in this Agreement.

 

"Source Code" means the human-readable form of programming code and related system documentation, including all comments and any procedural language.  Source Code does not include End User Documentation.

 

"Supplier" means the company identified as such on the signature page to this Agreement.

"Supplier" means ___________.

"Supplier Product" means the Supplier Product identified in Exhibit A that OEM is authorized to sublicense, market or sell under this Agreement.

"Supplier Products" means the Supplier Products identified in Exhibit A that OEM is authorized to sublicense, market or sell under this Agreement.

2.         GRANT OF LICENSES. 

2.         GRANT OF LICENSES. 

 

(a)        Licenses. 

Subject to the terms and conditions of this Agreement, Supplier grants to OEM a non-exclusive, worldwide, perpetual license to the Supplier Product: (i) to use, reproduce and distribute the Supplier Product internally within OEM; (ii) if this license is identified in Exhibit A as including the right to Source Code, to create or have created Derivative Works by modifying the Source Code of the Supplier Product and to reproduce and distribute internally the Derivative Works in Source Code form or in Object Code form; (iii) to create or have created Derivative Works by modifying the Documentation of the Supplier Product and to reproduce and distribute internally such Derivative Works in any form; (iv) to distribute externally to End Users, either directly or through distributors, but only in bundled form with OEM’s products, copies in Object Code form only of the Supplier Product or Derivative Works and copies in any form of the Documentation or any Derivative Works of the Documentation, such distribution shall be in accordance with OEM's standard software distribution license agreement for a particular channel of distribution; (v) to exercise all rights to the Supplier Product with regard to pictorial, graphic or audio/visual works, including icons, screens, music and characters, that are created as a result of execution of any code or any Derivative Work thereof in accordance with the granted license; and (vi) to use development tools to produce Object Code that is identical to, or differs from, that produced by Supplier. 

Subject to the terms and conditions of this Agreement, Supplier hereby grants and OEM hereby accepts, a nonexclusive and nontransferable license (i) to use and reproduce the Supplier Products (in executable, object code form only) on any tangible medium, provided that such reproduction occurs only at the location of OEM's principal office first set forth above unless an alternate location is otherwise specified in writing to Supplier; and (ii) to distribute Supplier Product copies, bundled and in conjunction with OEM's Product(s) only, to Distributors, Resellers and End Users, such distribution to be effected by sublicenses containing terms consistent with and no less restrictive than the terms hereof.  The license granted to OEM hereunder specifically extends to OEM's use of the source code for the designated Supplier Products for purposes of software reproduction and incorporation into bundled application with OEM's products.  Under no circumstances and notwithstanding any of the foregoing, may sublicenses granted by OEM include access to or use of Supplier's Product source codes.  OEM is expressly prohibited from any marketing and/or distribution of Supplier Products unless each copy is bundled with OEM's Product(s).  OEM and all Distributors and Resellers shall have the right to distribute the Supplier Products by license to End Users.

 

(b)        Product Modification and Tampering. 

 

OEM agrees not to modify, de-compile, reverse engineer, reverse compile, modify or perform any similar type of operation on any software or firmware acquired under this Agreement, in any fashion or for any purpose whatsoever, without the prior written consent of Supplier.  OEM also agrees that any such works are Derivative Works and as such are the sole and exclusive property of Supplier or its licensor.

 

(c)         Documentation License. 

 

Subject to the terms and conditions of this Agreement, Supplier hereby grants and OEM accepts a nonexclusive and nontransferable right and license to use and reproduce the Documentation, and to distribute the Documentation solely in conjunction with the Supplier Products.  Such reproductions shall occur only at OEM's principal office first set forth above, unless an alternative location is otherwise specified in writing to Supplier.  Such distribution may be to Distributors, Resellers and End Users.

 

(d)        Third Party License. 

 

If all or any part of the Supplier Products or Updates delivered to OEM has been licensed to Supplier by a third party software supplier then, notwithstanding anything to the contrary contained in this Agreement, OEM is granted a sublicense to the third party software subject to the same terms and conditions as those contained in the Agreement between Supplier and such third party software supplier.  In addition, Supplier reserves the right to substitute any third party software in the Supplier Products as long as the new third party software does not materially affect the functionality of the Supplier Products.  Supplier represents that the current release of the Supplier Products contains no third party software which would require OEM to agree to any terms and conditions in addition to those set forth in this Agreement.

3.         TERM. 

3.         TERM. 

The initial term of this Agreement shall commence on the date it is executed by an authorized Supplier signatory and end on the date set forth in Exhibit A, unless terminated earlier as provided herein, and will automatically renew for a period of one year from the date otherwise expiring unless, not later than sixty (60) days prior to the scheduled expiration date, either party notifies the other that it does not desire this Agreement to continue.

The initial term of this Agreement shall be five (5) years, unless terminated earlier as provided herein, commencing on the date it is executed by an authorized Supplier signatory and will automatically renew for a second five-year period at the expiration of said initial term, as to the version of Supplier Products licensed to OEM as of the date of renewal.  The availability and terms of any Licenses to OEM for versions of Supplier Products becoming available after the expiration of the initial term will be negotiated at the time said versions become available.  The acceptance of any additional licenses by Supplier after the expiration of the renewed term will be construed as extending this Agreement beyond the renewal period on a month-to-month basis, with the month-to-month Agreement subject to termination at any time by either party upon thirty (30) days' prior written notice.

 

4.         PRODUCTS AND VOLUMES. 

 

(a)        Eligible Products. 

 

Supplier reserves the right at any time to make changes to any Supplier Products, including without limitation changes required (i) for security, or (ii) to facilitate performance in accordance with specifications..

 

(b)        Volume Forecast. 

 

OEM agrees to provide Supplier with a rolling six (6) month non-binding forecast of OEM's projected shipments for the product(s) licensed hereunder on the first business day of each calendar quarter.

4.         SUPPORT, MARKETING AND DISTRIBUTION. 

5.         SUPPORT, MARKETING AND DISTRIBUTION. 

(a)        Maintenance and Support. 

(a)        Maintenance and Support. 

Supplier shall provide OEM with maintenance and support according to the terms and conditions specified in Exhibit B.

Supplier shall provide OEM with maintenance and support according to the terms and conditions specified in Exhibit B.

(b)        Nonexclusivity. 

(b)        Nonexclusivity. 

OEM understands that Supplier reserves the right to appoint other OEM's without restriction as to number or location.

OEM understands that Supplier reserves the right to appoint other OEMs without restriction as to number or location.

(c)         Use of Authorized OEM Title. 

(c)         Use of Authorized OEM Title. 

OEM may refer to itself, in connection with exercising its rights under this Agreement, as a Supplier "Authorized OEM".

OEM may refer to itself, in connection with exercising its rights under this Agreement, as a "Supplier Authorized OEM," but solely in connection with marketing the Bundled Products/Services and only during the term of this Agreement.

(d)        Public Announcements and Promotional Materials. 

(d)        Public Announcements and Promotional Materials. 

Supplier and OEM shall cooperate with each other so that each party may issue a press release other than as a customer reference concerning this Agreement, provided that each party must approve such press release prior to its release.

Supplier and OEM shall cooperate with each other so that each party may issue a press release other than as a customer reference concerning this Agreement, provided that each party must approve such press release prior to its release.  Supplier shall have the right to use OEM's name as a customer reference.  Supplier shall cooperate with OEM in its development of the initial marketing and sales materials used to promote the distribution of the Supplier Products.

 

(e)         General Restrictions on Distribution. 

 

OEM agrees to comply with and shall require its Distributors and/or Resellers to comply with all applicable laws, rules and regulations to preclude the acquisition of unlimited rights to technical data, software and documentation provided with the Supplier Product to a governmental agency, and ensure the inclusion of the appropriate "Restricted Rights" or "Limited Rights" notices required by the U.S. Government agencies or other applicable agencies.

(e)         Software. 

(f)         Software. 

When marketing products incorporating the Supplier Product, OEM agrees to exercise commercially reasonable efforts to ensure that each End User receiving the products or services through OEM or OEM’s lines of distribution understands and agrees to be bound by a OEM standard Software License Agreement.

Software acquired under this Agreement is made available to OEM to market and sublicense only under the provisions of this Agreement.  When marketing software, OEM agrees to exercise commercially reasonable efforts to ensure that each End User receiving the software through OEM or Distributor understands, and agrees to be bound by, the applicable Supplier Software License Agreement. (Exhibit C) For purposes of this Agreement, "Software" includes firmware and software stored in ROM's.  OEM agrees to be bound by the applicable Software License Agreement with respect to all software put to Internal Use by OEM.

 

(g)        Third Party Requirements. 

 

In the event that Supplier is required by a third party software supplier to cease and to cause its OEMs to cease reproduction and distribution of a particular revision of the Supplier Products, OEM agrees to comply herewith provided Supplier provides OEM with thirty (30) days prior written notice and further provided that Supplier replaces such affected Supplier Product with a functionally equivalent Supplier Product as soon as commercially practicable.

(f)         Use of Supplier Marks and Trade Names. 

(h)        Use of Supplier Marks and Trade Names. 

OEM is authorized to use the Supplier Marks applicable to the Supplier Product in connection with its marketing of products or services incorporating the Supplier Product.  OEM agrees not to alter, erase or overprint any notice provided by Supplier without the prior written consent of Supplier or affix any Supplier Marks.  OEM recognizes Supplier's ownership and title to the Trade Names and Marks.

OEM is authorized to use the Supplier Marks applicable to Supplier Products acquired under this Agreement in connection with its marketing of Bundled Products/Services, but only in accordance with Supplier's then current trademark usage policies and only during the term of this Agreement.  OEM is not authorized to use any Supplier Trade Names without the prior written consent of Supplier.  Upon the Expiration Date or termination of this Agreement, OEM agrees to cease all display, advertising and use of any and all Supplier Trade Names and Marks.  OEM agrees not to alter, erase or overprint any notice provided by Supplier and not to attach any additional trademarks without the prior written consent of Supplier or affix any Supplier Marks to any non-Supplier product.  OEM recognizes Supplier's ownership and title to the Trade Names and Marks and the goodwill attaching to the Trade Names and Marks.  OEM agrees that any goodwill that accrues because of its use of the Trade Names and Marks shall inure to the benefit of Supplier.  OEM agrees not to contest Supplier's Marks or Trade Names, or to make application for registration of any Supplier Marks or Trade Names without Supplier's prior written consent.  OEM agrees not to use, employ or attempt to register any trademarks or Trade Names that are confusingly similar to Supplier's Marks or Trade Names.

 

(i)         End User Satisfaction. 

 

The Supplier Products marketed by OEM under this Agreement are technically complex and require high-quality, individualized pre-marketing and post-marketing support.  This support is necessary to achieve and maintain high End User satisfaction.  OEM agrees that high End User satisfaction is a condition of its continued authorization by Supplier.  Although Supplier has granted OEM a worldwide license to market and sell Supplier Products under the terms of this Agreement, OEM agrees that it will not market and sell Supplier Products in areas where it does not have the ability to support the Supplier Products.  In addition, in order to help ensure high End User satisfaction, OEM agrees:

 

·                       To report to Supplier promptly and in writing all suspected and actual problems with any Supplier Product;

 

·                       To maintain a shipment report identifying the Distributor, Reseller, or End User the Supplier Product sold, the date of sale, and the quantities of the Supplier Products sold;

 

·                       To retain all shipment reports for three (3) years after the date of sale, and assist Supplier, upon request, in tracing a product to an Distributor, Reseller, or End User in distributing critical product information, in locating a Supplier Product for safety reasons, or in discovering unauthorized marketing or infringing acts;

 

·                       To conduct business in a manner that reflects favorably at all times on the products, goodwill and reputation of Supplier;

 

·                       To avoid deceptive, misleading or unethical practices that are or might be detrimental to Supplier or the Supplier Products;

 

·                       To refrain from making any false or misleading representations with regard to Supplier or the Supplier Products;

 

·                       To refrain from making any representations, warranties or guarantees to customers with respect to the specifications, features or capabilities of the Supplier Products that are inconsistent with the literature distributed by Supplier; and

 

·                       To the extent required by Supplier, OEM agrees not to market OEM Products with Supplier Products, until the OEM Products have been tested and approved by Supplier or its authorized representatives.

5.         FEES AND PAYMENT.

6.         FEES AND PAYMENT. 

(a)        Royalty and License Fees. 

(a)        Royalty and License Fees. 

As license fees for the rights herein granted, OEM shall pay to Supplier royalties on OEM sales and related licensing or sublicensing of product incorporating or bundled with the Supplier Product at the rates and on the terms specified in Exhibit A hereto.  OEM shall pay Supplier such license fees accrued during each calendar quarter, within forty-five (45) days following the end of such calendar quarter, and shall be accompanied by a report in reasonable detail showing the calculation of such fees. All payments shall be made in United States dollars.  Prices are exclusive of all applicable taxes.  OEM agrees to pay all sales and use taxes, but excluding taxes on Supplier's net income.

As license fees for the rights herein granted, OEM shall pay to Supplier royalties on OEM sales and related licensing or sublicensing of product incorporating or bundled with Supplier Products at the rates and on the terms and subject to the exceptions and options specified in Exhibit A hereto.  Royalties shall accrue in the applicable corresponding quantity upon: (a) the initial date of OEM's Internal Use of a Supplier Product; (b) distribution by OEM of a copy of a Supplier Product to a Distributor, Reseller or End User; (c) authorization by OEM to increase the authorized number of copies; or (d) the initial date of OEM's internal use or shipment by OEM to a Distributor, Reseller, or End User of an Update.  OEM shall pay Supplier such license fees accrued during each month, together with any maintenance fees, within thirty (30) days following the end of such month. Payment for the last month of each calendar quarter shall be accompanied by a monthly report as described in Section e below.

 

(b)        Service Fees. 

 

OEM shall pay to Supplier the service fees set forth in Exhibit A for maintenance and support services described in Exhibit B hereto.

 

(c)         Financial Information and Payment. 

 

OEM agrees to maintain good financial standing with Supplier.  At Supplier's request, OEM agrees to provide to Supplier financial information and evidence of financial security as reasonably required by Supplier.  All payments shall be made in United States dollars, at Supplier's option, (i) at Supplier's address as indicated in this Agreement or at such other address as Supplier may from time to time indicate by proper notice hereunder or (ii) by wire transfer to a bank and account number designated by Supplier.  Balances of all invoices not paid when due will accrue interest  at the rate of 1-1/2% per month (18% annually) (or, if less, at the maximum rate allowed by law) calculated from the date due until paid.

 

(d)        Taxes. 

 

Prices are exclusive of all applicable taxes.  OEM agrees to pay all taxes associated with the marketing, sublicensing, distribution and transfer of Supplier Products ordered under this Agreement, including but not limited to sales, use, excise, added value and similar taxes and all customs, duties or governmental impositions, but excluding taxes on Supplier's net income.  Any tax or duty Supplier may be required to collect or pay upon the marketing or transfer of the Supplier Products shall be paid by OEM, and such sums shall be due and payable to Supplier upon delivery.  If OEM claims a tax exemption, OEM must provide Supplier with valid tax exemption certificates.

 

(e)         Point of Sale Reports. 

 

OEM agrees to provide Supplier, by no later than thirty (30) calendar days after the end of each quarter, a Point of Sale report for the previous calendar quarter. "Point of Sale Report" means, for purposes of this Agreement, a report provided by OEM to Supplier that is in a Supplier-specified format and that includes, among other things, (i) a list of Supplier Products sold, (ii) the regional designation required by Supplier and (iii) the part numbers of the Supplier Products sold.  The Point of Sale Report may only be used by Supplier to provide compensation to Supplier's sales force and to concentrate marketing activities to promote greater sales.

(b)        Records Examinations. 

(f)         Records Examinations. 

OEM agrees to allow Supplier to examine its records to determine compliance or noncompliance with this Agreement.  Any examination will be conducted only by an authorized representative of Supplier, and will occur during regular business hours at OEM's offices and will not interfere unreasonably with OEM's business activities.  Examinations will be made no more frequently than annually, and Supplier will give OEM fifteen (15) business days or more prior written notice of the date of the examination and the name of Supplier’s authorized representative who will be conducting the examination.  The audit will be conducted at Supplier’s expense. All information obtained by Supplier’s authorized representative conducting the audit will be maintained confidential by the representative.  The examiner will give OEM and Supplier an examination report containing only the information necessary to indicate compliance or non-compliance with this Agreement.

OEM agrees to allow Supplier to examine its records to determine compliance or noncompliance with this Agreement.  Any examination will be conducted only by an authorized representative of Supplier, and will occur during regular business hours at OEM's offices and will not interfere unreasonably with OEM's business activities.  Examinations will be made no more frequently than quarterly, and Supplier will give OEM fifteen (15) business days or more prior written notice of the date of the examination and the name of Supplier's authorized representative who will be conducting the examination.  The audit will be conducted at Supplier's expense unless the results of such audit establish that inaccuracies in the quarterly reports have resulted in underpayment to Supplier of more than (5%) of the amount due in any quarter, in which case OEM shall pay all amounts due and bear the expenses of the audit. All information obtained by Supplier's authorized representative conducting the audit will be maintained confidential by the representative.  The examiner will give OEM and Supplier an examination report containing only the information necessary to indicate compliance or non-compliance with this Agreement. 

6.         INTELLECTUAL PROPERTY RIGHTS & INDEMNIFICATION. 

7.         INTELLECTUAL PROPERTY RIGHTS & INDEMNIFICATION. 

(a)        Indemnification. 

(a)        Indemnification. 

Supplier will indemnify, defend and hold OEM, its affiliates and, subsidiaries, and its and their respective directors, officers, employees and agents (collectively, "OEM Persons") harmless from any and all damages, liabilities, costs and expenses incurred by any OEM Person as a result of any claim, judgment or adjudication against OEM Person that alleges that the Supplier Product, Trade Names or the Marks infringe any trademark,  copyright patent or other intellectual property rights of any third party.  OEM shall promptly notify Supplier in writing of any claim for which it seeks indemnification, provided the failure or delay in doing so shall not relieve Supplier from any obligation to indemnify any OEM Person except to the extent such delay or failure materially prejudices the defense of any such claim.  Supplier will have control of the defense of any action and all negotiations for settlement and compromise, but shall not make any settlement binding on any OEM Person without OEM's consent except if such settlement provides a complete and absolute release of such person. OEM shall provide Supplier with reasonable assistance and information necessary to perform the above, with Supplier to be responsible for any out-of-pocket expenses of any OEM Person in providing such assistance.  If any OEM Person desires to have separate legal representation in any such action, such OEM Person shall be responsible for the costs and fees of its separate counsel.

Supplier agrees to indemnify, defend and hold OEM harmless from any and all damages, liabilities, costs and expenses incurred by OEM as a result of any claim, judgment or adjudication against OEM that provides that the Supplier Products, Trade Names or the Marks appropriately used by OEM in connection with marketing the Supplier Products infringe any U.S. trademark, U.S. copyright or U.S. patent of any third party, provided:  (i) OEM promptly notifies Supplier in writing of the claim;  (ii) Distributor agrees that Supplier will have the sole control of the defense of any action and all negotiations for settlement and compromise; and (iii) OEM provides Supplier with the assistance, information and authority necessary to perform the above.  If OEM desires to have separate legal representation in any such action, OEM shall be responsible for the costs and fees of its separate counsel.  In no event shall Supplier's liability to OEM under this section exceed the total amounts paid to Supplier by OEM hereunder.

(b)        Limitation on Indemnification. 

(b)        Actual or Potential Product Infringement. 

Supplier shall have no liability for infringement based on (a) modification of the Products by OEM, or (b) the combination or use of the Supplier Product with any other computer program, equipment, product, device, item or process to the extent (i) such program, equipment, product, device or process is not furnished by Supplier and (ii) such program, equipment, product, device or process is not specified as appropriate for the use of the Supplier Product by Supplier (e.g. operating system software) and (iii) such infringement would have been avoided by the use of the Supplier Product alone and in its unmodified form.

Should the Supplier Products, or the operation of the Supplier Products, become, or in Supplier's opinion be likely to become, the subject of infringement of any U.S. trademark, U.S. copyright or U.S. patent, OEM agrees to permit Supplier, at its option and expense to procure for OEM the right to continue using the Supplier Products or, if possible and commercially reasonable to do so, to replace or modify them so that they become non-infringing.  Supplier shall have no liability for infringement based on (a) use of other than the current release of the Licensed Products, or (b) modification of the Products by any party other than Supplier, or the combination or use of the Licensed Products with any other computer program, equipment, product, device, item or process not furnished by Supplier, if such infringement would have been avoided by the use of the Licensed Products alone and in their current unmodified form. 

 

(c)         Disclaimer. 

 

THE ABOVE STATES THE ENTIRE LIABILITY OF SUPPLIER WITH RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS OR ANY OTHER FORM OF INTELLECTUAL PROPERTY RIGHT BY ANY PRODUCT SUPPLIED BY SUPPLIER.

(c)         Proprietary Nature of Products and Ownership. 

(d)        Proprietary Nature of Products and Ownership. 

No title to or ownership of software acquired under this Agreement or proprietary technology in hardware acquired under this Agreement is transferred to OEM.  Notwithstanding any provision of this Agreement to the contrary, Supplier, or the licensor through which Supplier obtained the rights to distribute the Supplier Product, owns and retains all title and ownership of all intellectual property rights in the Supplier Product, including all software, firmware, software master diskettes, copies of software, master diskettes, documentation and related materials that are acquired, produced or shipped by Supplier under this Agreement, and all modifications to and derivative works of software acquired under this Agreement that are made by Supplier or any third party (other than on behalf of OEM).  Supplier does not transfer any portion of such title and ownership, or any of the associated goodwill, to OEM.  Supplier shall own all Derivative Works of the Supplier Product produced or created by or on behalf of OEM provided that Supplier shall have no rights independently to market or sublicense any Derivative Works created by OEM without OEM’s prior written approval.  OEM shall have rights to use such Derivative Works subject to the terms and conditions of this Agreement.

No title to or ownership of software acquired under this Agreement or proprietary technology in hardware acquired under this Agreement is transferred to OEM.  Notwithstanding any provision of this Agreement to the contrary, Supplier, or the licensor through which Supplier obtained the rights to distribute the Supplier Products, owns and retains all title and ownership of all intellectual property rights in the Supplier Products, including all software, firmware, software master diskettes, copies of software, master diskettes, documentation and related materials that are acquired, produced or shipped by Supplier under this Agreement, and all modifications to and derivative works of software acquired under this Agreement that are made by OEM, Supplier or any third party.  Supplier does not transfer any portion of such title and ownership, or any of the associated goodwill, to OEM, and this Agreement shall not be construed to grant OEM any right or license, whether by implication, estoppel or otherwise, except as expressly provided.  OEM agrees to be bound by and observe the proprietary nature of the Supplier Products acquired under this Agreement.  OEM agrees to take appropriate action by instruction or agreement with its employees, agents, and contractors who are permitted access to the Supplier Products to fulfill OEM's obligations under this Agreement.  Except as set forth in this Agreement, or as may be permitted in writing by Supplier, OEM agrees not to provide Supplier Products or any part or copies thereof to any third party without the prior written consent of Supplier.

(d)        Effect of Bankruptcy.

 

If "Source Code Escrowed" is indicated on Exhibit A, upon request of OEM, Supplier agrees to execute a standard software escrow agreement (the "Escrow Agreement") supplied by an escrow agent selected by OEM and reasonably acceptable to Supplier (the "Escrow Agent"), and in connection therewith Supplier agrees that from time to time upon request of OEM, Supplier shall deposit in escrow with the Escrow Agent the latest versions of all intellectual property, as defined in section 101 of Title 11 of the United States Code, with respect to software and other technology incorporated in the Supplier Product (the "Technology") including without limitation all Source Code, designs, patents and Documentation ("Supplier Product Materials"), to be made available to OEM upon the conditions set forth in this Section.  

 

Regardless of whether "Source Code Escrowed" is indicated on Exhibit A and regardless of whether this license is identified in Exhibit A as including the right to Source Code, in the event that a trustee in bankruptcy is appointed for Supplier, then unless and until such trustee has rejected this Agreement, the trustee shall, at the written request of OEM, (i) continue to perform all of the obligations of Supplier under this Agreement, or (ii) promptly deliver to OEM the Technology, including all Supplier Product Materials held by the trustee, including any embodiment of such intellectual property to the extent protected by applicable nonbankruptcy law, and in either case not interfere with the rights of OEM to such intellectual property (including such embodiment) as provided in this Agreement or any agreement supplementary hereto, including any right to obtain such intellectual property or such embodiment from any Escrow Agent under an Escrow Agreement.

 

Regardless of whether "Source Code Escrowed" is indicated on Exhibit A and regardless of whether this license is identified in Exhibit A as including the right to Source Code, if the trustee rejects this Agreement, and OEM elects under Section 365(n)(1)(B) of Title 11 of the United States Code to retain its rights under this Agreement, the trustee shall promptly deliver to OEM all intellectual property, as defined in Section 101 of Title 11 of the United States Code, with respect to the Technology, including all Supplier Product Materials held by the trustee, including any embodiment of such intellectual property to the extent protected by applicable nonbankruptcy law, and not interfere with the rights of OEM to such intellectual property (including such embodiment) under this Agreement or any agreement supplementary hereto, including any right to obtain such intellectual property or such embodiment from any Escrow Agent under any Escrow Agreement.

 

7.         CONFIDENTIAL INFORMATION. 

8.         CONFIDENTIAL INFORMATION.  

The parties agree that any Confidential Information provided under this Agreement shall be held and maintained in strict confidence.  Each party agrees to protect the confidentiality of such information in a manner consistent with the way a reasonable person would protect similar Confidential Information.  "Confidential Information" means the information and materials noticed or marked by Supplier or OEM as confidential and proprietary.  "Confidential Information" does not include information that (i) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully, (ii) becomes publicly known without fault of the receiving party, (iii) is independently developed by the receiving party, (iv) is approved for release in writing by the disclosing party, (v) is disclosed without restriction by the disclosing party to a third party, or (vi) is disclosed pursuant to legal obligations beyond the control of the disclosing and receiving parties.

The parties agree that any Confidential Information provided under this Agreement shall be held and maintained in strict confidence.  Each party agrees to protect the confidentiality of such information in a manner consistent with the way a reasonable person would protect similar Confidential Information.  "Confidential Information" means the information and materials noticed or marked by Supplier or OEM as confidential and proprietary.  "Confidential Information" does not include information that (i) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully, (ii) becomes publicly known without fault of the receiving party, (iii) is independently developed by the receiving party, (iv) is approved for release in writing by the disclosing party, (v) is disclosed without restriction by the disclosing party to a third party, or (vi) is disclosed pursuant to legal obligations beyond the control of the disclosing and receiving parties.

8.         WARRANTIES. 

9.         WARRANTIES. 

 

(a)        Statements of Limited Warranty. 

Supplier represents and warrants (1) that the Supplier Product was prepared in a workmanlike manner and with professional diligence and skill; (2) that the Supplier Product will function on the machines and with operating systems for which it was designed; (3) that the Supplier Product conforms to the specifications and functions (including any related Documentation); and (4) that Supplier will perform all services hereunder in compliance with applicable law manner and with professional diligence and skill.  Supplier further represents and warrants that (1) (except as disclosed on Exhibit A) it is the sole author of all works employed by Supplier in preparing the Supplier Product; (2) it has and will have full and sufficient right to assign or grant the rights and/or licenses granted in the Supplier Product pursuant to this Agreement; and (3) the Supplier Product does not and will not infringe any patents, copyrights, trademarks, or other intellectual property rights (including trade secrets), privacy or similar rights of any third party, nor has any claim (whether or not embodied in an action, past or present) of such infringement been threatened or asserted, nor is such a claim pending, against Supplier (or, insofar as Supplier is aware, any entity from which Supplier has obtained such rights).

Supplier provides, to End Users only, warranties for software in the Software License Agreement that accompanies each software product.  Each Supplier Statement of Limited Warranty and each Software License Agreement distributed with the Supplier Products is incorporated into this Agreement by reference.  Supplier extends the warranties contained in the applicable Statement of Limited Warranty or Software License Agreement through OEM to End Users.  OEM is responsible to provide, or cause to be provided, a copy of the applicable Statement of Limited Warranty or Software License Agreement to End Users for their review at the time of installation.  Supplier does not warrant non-Supplier products.  They are provided by Supplier on an "AS IS" basis.  Any warranty service for non-Supplier products will be provided by the manufacturer of the products in accordance with the applicable manufacturer's warranty.

 

(b)        Warranty Representations. 

 

OEM is not authorized to make any warranty commitment on Supplier's behalf, whether written or oral, other than those contained in the applicable Statement of Limited Warranty or Software License Agreement.  Supplier may authorize OEM to market Supplier Products for which warranty service is provided by (1) OEM, (2) Supplier, (3) a Supplier selected third party, (4) the manufacturer of a non-Supplier product, or (5) some combination of these providers of warranty service.

 

(c)         Warranty Service Responsibilities. 

 

OEM agrees to validate, or cause to be validated, all warranty claims presented to OEM, and maintain the capability to provide reasonable warranty services upon request by Supplier.

 

10.        LIMITATION OF WARRANTIES. 

 

 

 

THE WARRANTIES DESCRIBED IN THE APPLICABLE SUPPLIER STATEMENT OF LIMITED WARRANTY OR SOFTWARE LICENSE AGREEMENT AND SECTION 10 ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

9.         LIMITATION OF REMEDIES. 

11.        LIMITATION OF REMEDIES. 

(a)        LIMITATIONS. 

SUPPLIER'S ENTIRE LIABILITY AND OEM's EXCLUSIVE REMEDY FOR ANY CLAIMS CONCERNING THIS AGREEMENT AND SUPPLIER PRODUCTS ACQUIRED UNDER THIS AGREEMENT ARE SET FORTH IN THIS SECTION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER SUPPLIER NOR OEM WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUSTAINED OR INCURRED IN CONNECTION WITH THIS AGREEMENT AND THE SUPPLIER PRODUCT THAT IS SUBJECT TO THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.  Supplier's liability to OEM under this Agreement shall not exceed the greater of (i) amounts paid by OEM to Supplier under this Agreement or (ii) $50,000.  OEM's liability to Supplier under this Agreement shall not exceed the amounts payable by OEM to Supplier under Section 5.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER SUPPLIER NOR OEM WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUSTAINED OR INCURRED IN CONNECTION WITH THIS AGREEMENT AND THE SUPPLIER PRODUCTS THAT ARE SUBJECT TO THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.

 

(a)        Software. 

 

Supplier's liability and OEM's exclusive remedy for software acquired under this Agreement are set forth in the applicable Software License Agreement.  The Software License Agreement that applies is the Software License Agreement in effect at the time when the event occurs that causes the damage.

 

(b)        Third Party Claims. 

 

Supplier will not be liable for any claim by OEM based on any third party claim, except as stated in Sections 8 and 10 of this Agreement.

(b)        Exceptions. 

(c)         Aggregate Liability. 

The limitation set forth in subsection (a) above do not apply to any payment under Section 6; to claims by OEM for personal injury or damage to real property or tangible personal property caused by Supplier's negligence; or in the case of fraud.

Supplier's liability for direct damages to OEM for any cause whatsoever, except as otherwise stated in this Section, and regardless of the form of action, shall not exceed the amount received by Supplier from OEM during the previous twelve (12) months for the Supplier product giving rise to such claim.  This limitation does not apply to the payment of the costs, damages and attorney's fees referred to in Sections 8.a and 13.g, or to claims by OEM for personal injury or damage to real property or tangible personal property caused by Supplier's negligence.

10.        TERMINATION. 

12.        TERMINATION. 

(a)        Termination for Cause. 

(a)        Termination for Cause. 

Either party may terminate this Agreement for the substantial breach by the other party of a material term.  The terminating party will first give the other party written notice of the breach and a reasonable period of at least sixty (60) days in which to cure the alleged breach.  If a cure is not achieved during the cure period, then the non-breaching party may terminate this Agreement upon written notice.

Either party may terminate this Agreement for the substantial breach by the other party of a material term.  The terminating party will first give the other party written notice of the breach and a reasonable period of at least thirty (30) days in which to cure the alleged breach.  If a cure is not achieved during the cure period, then the non-breaching party may terminate this Agreement upon written notice.

(b)        Termination by Supplier. 

(b)        Termination by Supplier. 

Supplier may terminate this Agreement if OEM fails to meet its payment obligations under this Agreement and this failure continues for thirty (30) days following receipt of written notice from Supplier.

Supplier may terminate this Agreement if OEM fails to meet its payment obligations under this Agreement and this failure continues for ten (10) days following receipt of written notice from Supplier.

(c)         Insolvency, Assignment, or Bankruptcy. 

(c)         Insolvency, Assignment, or Bankruptcy. 

Either party may terminate this Agreement upon written notice to the other party if the other party (i) is not paying its debts as such debts generally become due, (ii) becomes insolvent, (iii) files or has filed against it a petition (or other document) under any Bankruptcy Law or similar law that is unresolved within sixty (60) days of the filing of such petition (or document), (iv) proposes any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, (v) makes a general assignment or trust mortgage for the benefit of creditors, or (vi) if a receiver, trustee, custodian or similar agent is appointed or takes possession of any of its property or business.

Either party may terminate this Agreement upon written notice to the other party if the other party (i)  is not paying its debts as such debts generally become due, (ii) becomes insolvent, (iii) files or has filed against it a petition (or other document) under any Bankruptcy Law or similar law that is unresolved within sixty (60) days of the filing of such petition (or document), (iv) proposes any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, (v) makes a general assignment or trust mortgage for the benefit of creditors, or (vi) if a receiver, trustee, custodian or similar agent is appointed or takes possession of any of its property or business.

 

(d)        Acceleration of Payment. 

 

Upon termination of this Agreement by Supplier under Section 13.a, 13.b or 13.c, the due dates of all outstanding invoices to OEM for Supplier Products will automatically be accelerated so that they become due and payable on the effective date of termination, even if longer terms had been provided previously.

(d)        Effect of Termination on Obligations. 

(e)         Effect of Termination on Obligations. 

Termination of this Agreement will not affect any pre-termination obligations of either party under this Agreement, and any termination is without prejudice to the enforcement of any undischarged obligations existing at the time of termination.  Within thirty (30) calendar days after termination of this Agreement, OEM shall either deliver to Supplier or destroy all copies of the Supplier Product and Documentation and any other materials provided by Supplier to OEM hereunder in its possession or under its control, and shall furnish to Supplier an affidavit signed by an officer of OEM certifying that, to the best of its knowledge, such delivery or destruction has been fully effected.  Notwithstanding the foregoing, (i) all sublicenses to the Supplier Product or any Derivative Work thereof granted to End Users by or on behalf of OEM and in connection with products incorporating the Supplier Product shall survive any termination of the Agreement, and in particular, it is agreed that upon expiration or termination of the Agreement for any reason, such expiration or termination shall not abridge or diminish in any way the rights of End Users to the licensed use and enjoyment of any product utilizing or incorporating the Supplier Product or any Derivative Work already distributed in accordance with the Agreement prior to its expiration or termination; and (ii) for a period of up to one year after the date of the termination of this Agreement OEM may continue, subject to payment of amounts which may be due as of the date of such termination and at any time thereafter, to sell the Supplier Product and grant End User licenses to in connection therewith, under the provisions of this Agreement solely to (A) work off existing inventory, (B) fulfill contract commitments existing at the date of expiration, or (C) satisfy binding quotations in effect at the date of termination, and may thereafter retain such rights as are necessary to support users at the release level existing at the time of termination or expiration.

Termination of this Agreement will not affect any pre-termination obligations of either party under this Agreement, and any termination is without prejudice to the enforcement of any undischarged obligations existing at the time of termination.  Regardless of any other provision of this Agreement, Supplier will not by reason of the termination of this Agreement be liable for compensation, reimbursement, or damages on account of the loss of prospective profits on anticipated sales, or on account of expenditures, investments, leases, or commitments in connection with OEM's business or goodwill, or otherwise.  Within thirty (30) calendar days after termination of this Agreement, Licensee shall either deliver to Supplier or destroy all copies of Supplier Products and Documentation and any other materials provided by Supplier to Licensee hereunder in its possession or under its control, and shall furnish to Supplier an affidavit signed by an officer of Licensee certifying that, to the best of its knowledge, such delivery or destruction has been fully effected.  Notwithstanding the foregoing, and provided Licensee fulfills its obligations specified in this Agreement with respect to such items, Licensee may continue to use and retain copies of the Supplier Products and Documentation to the extent, but only to the extent, necessary to support and maintain Supplier Products rightfully distributed to End Users by Licensee prior to termination of this Agreement.

11.        GENERAL PROVISIONS. 

13.        GENERAL PROVISIONS. 

(a)        Force Majeure. 

(a)        Force Majeure. 

If either party is prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, including labor disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God, such defaulting party will be excused from performance for the period of the delay and for a reasonable time thereafter.

If either party is prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, including labor disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God, such defaulting party will be excused from performance for the period of the delay and for a reasonable time thereafter.

(b)        Choice of Law; Jurisdiction. 

(b)        Jurisdiction. 

The validity, construction and performance of this Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts applicable to contracts executed in and performed entirely within such Commonwealth, without reference to any choice of law principles of such Commonwealth.  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 hereunder 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 Massachusetts (and any Massachusetts State Court) for that purpose.

This Agreement will in all respects be governed by and construed in accordance with the laws of the State of Utah of the United States of America, and will not be construed in accordance with or governed by the United Nations Convention for International Sales of Goods.

(c)         Survival of Terms. 

(c)         Survival of Terms. 

The provisions of this Agreement that by their nature extend beyond the Expiration Date or other termination of this Agreement will survive and remain in effect until all obligations are satisfied.  Confidentiality provisions of Section 7 shall remain in effect until the Confidential Information is no longer Confidential.

The provisions of this Agreement that by their nature extend beyond the Expiration Date or other termination of this Agreement will survive and remain in effect until all obligations are satisfied.  Confidentiality provisions of Section 9. shall remain in effect until the Confidential Information is no longer Confidential.

 

(d)        Waiver. 

 

No waiver of any right or remedy on one occasion by either party will be deemed a waiver of that right or remedy on any other occasion.

(d)        Entire Agreement. 

(e)         Superior Agreement. 

This Agreement, including the following Exhibits, constitutes the entire Agreement between the parties pertaining to the subject matter and supersedes all prior agreements and understandings between the parties, written or oral, with respect to such subject matter.  No representations or statements of any kind made by any representative of either party which are not stated in this Agreement shall be binding on such party.  No course of dealing or course of performance shall be relevant to explain or supplement any term expressed in this contract.  In the event of any conflict between this Agreement and any purchase order or acknowledgment, this Agreement shall take precedence over any written or typed instructions in a written or electronic purchase order or acknowledgment.  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.).  The pre-printed provisions of any written or electronic purchase order or acknowledgment shall be void and of no effect. This Agreement shall be valid when signed by authorized officers of both parties.  The parties agree that this Agreement, together with any appendices, addenda or exhibits attached hereto, may be amended from time to time in writing by mutual agreement of the parties.  No party shall be bound by any change, alteration, amendment, modification or attempted waiver of any of the provisions of this Agreement unless in writing and signed by an authorized officer of the party against whom it is sought to be enforced.

This Agreement will not be supplemented or modified by any course of dealing or usage of trade.  Variance from or addition to the terms and conditions of this Agreement in any purchase order or other written notification from OEM will be of no effect, unless otherwise expressly provided for in this Agreement.  This Agreement may be amended or modified only by a writing signed by each party.

(e)         Assignment. 

(f)         Assignment. 

(i)         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, expressly or by operation of law, without the prior written consent of the other, except that each party may assign this Agreement (A) to any Subsidiary (as defined below) or company of which it is a Subsidiary so long as it remains responsible for such Subsidiary's performance or (B) 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.  Any attempted assignment in violation of the provisions of this Section will be void.

This Agreement is not assignable by OEM, in whole or in part, without Supplier's prior written consent.  Notwithstanding, Supplier will not unreasonably withhold consent to an assignment of this Agreement or any part of this Agreement to a parent, subsidiary or affiliate.  Any attempted assignment without Supplier's written consent will be null and void.

(ii)        All rights and licenses granted to a party under this Agreement shall apply to that party's Subsidiaries so long as such Subsidiaries agree to comply fully with the obligations imposed on that party by this Agreement and so long as such Subsidiary continues to be a Subsidiary of a party.  Each party shall remain fully liable for the actions and omissions of its Subsidiaries relative to rights granted under this Section 11(f).  The parties agree, however, that they may not seek to enforce any obligation of the other party (or its Subsidiaries) through a legal action brought against a Subsidiary except to the extent that such action seeks injunctive relief against that particular Subsidiary.

 

(iii)       "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 control exists.

 

 

(g)        Attorneys' Fees. 

 

Each party agrees to pay the other's reasonable attorneys' fees and costs of litigation if the original party, for any cause whatsoever, brings suit against the other party and the other party is finally adjudicated not to have liability.

(f)         Notice. 

(h)        Notice. 

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 address below the party's name on the signature page of 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.

Unless otherwise agreed to by the parties, all notices required under this Agreement (except those relating to product pricing, changes and upgrades) will be deemed effective when received and made in writing by either (i) registered mail, (ii) certified mail, return receipt requested, (iii) overnight mail, addressed and sent to the address indicated in the Composite Signature Agreement and to the attention of the party executing this Agreement or that person's successor, or (iv) by telephone facsimile transfer appropriately directed to the attention of the party executing this Agreement or that person's successor. 

(g)        Severability. 

(i)         Severability.  

If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Agreement had been executed with the invalid portion eliminated.  The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.

If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Agreement had been executed with the invalid portion eliminated.  The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.

(h)        Independent Contractors. 

(j)         Independent Contractors. 

Each party acknowledges that the parties to this Agreement are independent contractors and that it will not, except in accordance with this Agreement, represent itself as an agent or legal representative of the other.

Each party acknowledges that the parties to this Agreement are independent contractors and that it will not, except in accordance with this Agreement, represent itself as an agent or legal representative of the other.

(i)         Export Control. 

(k)        Compliance with Laws. 

Each party agrees that it will comply with the provisions of United States laws restricting export of any software, technical data or other information or materials, including without limitation the United States Export Administration Act and regulations thereunder, and will not export any software, technical data or other information or materials to any country in violation thereof.  This clause shall survive termination or cancellation of this Agreement.

OEM represents and warrants that all consents of governmental officials necessary for this Agreement to become effective have been obtained, or will be obtained, before OEM distributes any Supplier Products under this Agreement.  OEM will comply, at its own expense, with all statutes, regulations, rules, ordinances, and orders of any governmental body, department or agency that apply to or result from OEM's obligations under this Agreement.  OEM agrees to not export Supplier Products, directly or indirectly, separately or as part of a system, without first obtaining proper authority to do so from the appropriate governmental agencies or entities, as may be required by law.  In particular, OEM assures Supplier that, absent any required prior authorization from the Office of Export Licensing, U.S. Department of Commerce, 14th and Constitution Avenue, Washington, D.C. 20230, OEM will not export or reexport (as defined in Section 779 of the Export Administration Regulations, as amended ("Regulations")) the Supplier Products, any technical data or other confidential information, or direct product of any of the foregoing, to Afghanistan, Iraq, Iran, Syria, the People's Republic of China, Yugoslavia, or any Group Q, S, W, Y, or Z country specified in Supplement No. 1 to Section 770 of the Regulations. 

 

(l)         Government Rights. 

 

OEM agrees (i) to identify the Supplier Products in all proposals and agreements with the United States Government or any contractor for the United States Government; and (ii) to identify or to mark the software products provided pursuant to any agreement with the United States Government or any contractor for the United States Government as necessary to obtain protection substantially equivalent to that afforded commercial computer software and related documentation developed at private expense and provided with Restricted Rights as defined in DOD FAR Supplement 48 C.F.R. 252.227-7013(c)(1)(ii) in effect as of May 18, 1987 or any successor regulation.

(j)         Headings. 

(m)       Headings. 

The headings provided in this Agreement are for convenience only and will not be used in interpreting or construing this Agreement.

The headings provided in this Agreement are for convenience only and will not be used in interpreting or construing this Agreement.

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