AGREEMENT made of this _______ day of _______________, 1994 by and between Aladdin Systems, Inc., a Delaware corporation, with its principal place of business at 165 Westridge Drive, Watsonville, CA 95076, (“Aladdin”) and ____________________________ with a place of business at _____________ ____________________________________________________ (“Licensee”).
1. LICENSE
1.1 Software License. Aladdin hereby grants to the Licensee, a non-exclusive, non-transferable license (the “License”) to use Aladdin’s InstallerMaker computer software (“InstallerMaker”) for the purpose of distributing Licensee’s own computer software (the “Licensee’s Software”) and to copy and distribute those portions of InstallerMaker which are automatically embedded into Licensee’s Software, either on a commercial or non-commercial basis, as defined here, subject to the terms and conditions set forth herein.
1.2 Initial Term. The term of this License shall commence upon the execution hereof and shall remain in effect for the period of one (1) year from the Distribution Commencement Date set forth in Schedule A, unless terminated sooner pursuant to the provisions of this Agreement.
1.3 Acceptance. InstallerMaker shall be deemed accepted by Licensee upon delivery unless Licensee provides Aladdin within two (2) weeks thereinafter with a written description of any bona fide defects.
1.4 License Fee and Payment. Licensee shall be responsible for the payment of the Licensee Fees as set forth on Schedule A. The License Fee shall be paid by Licensee upon the execution hereof.
1.5 Renewal Terms. This Agreement shall be automatically renewed for additional one (1) year periods unless either party notifies the other, in writing, of its desire to discontinue this Agreement at least thirty (30) days prior to the expiration of a term of this Agreement. The license fee for each renewal term shall be Aladdin’s then current fees for InstallerMaker. The License Fee each such renewal term shall be raised no more than ten (10%) percent from the previous year’s licensing fee. Aladdin shall invoice Licensee thirty (30) days in advance of the expiration of a renewal term for the license fee due for the next renewal term. Each such invoice shall be payable within thirty (30) days from the receipt of Aladdin’s invoice. Overdue balances shall bear interest at the rate of one and one-half percent (1 1/2%) per month from the original due date of the invoice.
2. SCOPE OF USE
2.1 Restrictions on Use. Licensee shall not modify, translate, decompile nor create or attempt to create, by reverse engineering or otherwise, the source code from the object code supplied hereunder or adapt InstallerMaker in any way or use it to create a derivative work. No portion of InstallerMaker shall be distributed to any third party except as automatically embedded in Licensee’s Software. Any updates, revisions, enhancements, additions or conversions to InstallerMaker supplied by Aladdin under this or separate Agreement shall become a part of, and subject to, this Agreement and License. Licensee shall not distribute Licensee’s Software utilizing InstallerMaker prior to the Distribution Commencement Date.
2.2 Commercial and Non-Commercial Use. In the event that Licensee’s Software is distributed for consideration of any kind or distributed to any third party which is not part of Licensee’s organization, corporation or company, Licensee’s Software shall be deemed to be “commercially distributed”. In the event that Licensee’s Software is commercially distributed, Licensee shall be bound by those additional provisions of this Agreement which pertain to commercially distributed software. Licensee shall set forth on Schedule “A” whether the Licensee’s Software shall be distributed commercially or for noncommercial use.
3.1 Proprietary Rights. Aladdin represents that it is the owner of InstallerMaker and that it has the right to grant the License. Aladdin represents and Licensee acknowledges that InstallerMaker is the sole and exclusive property of Aladdin, including all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein and appurtenant thereto and Licensee agrees not to challenge Aladdin’s rights thereto. Licensee acknowledges that it is not purchasing title to InstallerMaker, but is rather being granted a license to use InstallerMaker and distribute InstallerMaker installers.
3.2 Application and Use; Confidentiality. Licensee shall not sell, transfer, disclose, publish, display or otherwise make available to others any portion of InstallerMaker except as provided for herein. Licensee agrees to secure and protect InstallerMaker in a manner consistent with the maintenance of Aladdin’s rights therein and to take appropriate action by instruction or agreement with its employees who are permitted access to InstallerMaker to satisfy its obligations hereunder. Licensee shall use its best efforts to assist Aladdin in identifying and preventing any unauthorized use or disclosure of InstallerMaker or any portions thereof or any of the algorithms or logic contained therein. Without limitation of the foregoing, Licensee shall advise Aladdin immediately in the event Licensee learns of or has reason to believe that any person who Licensee has given access to InstallerMaker, or any portion thereof, has violated or intends to violate the terms of this Agreement or any related non-disclosure agreement and the Licensee will, at Licensee’s expense, cooperate with Aladdin in seeking injunctive or other equitable relief in the name of Licensee or Aladdin against any such person. Licensee agrees to maintain the confidentiality of any information regarding the business affairs, property or method of operation, or other information relating to Aladdin, obtained by Licensee during the term of this Agreement.
3.3 Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALADDIN MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. In the event Aladdin fails to remedy material defects in InstallerMaker, Licensee’s sole remedy shall be to receive a refund of any license fees paid hereunder for the current term of this License.
3.4 Limitation of Liability. ALADDIN SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE TO LICENSEE OR ANY SUB-LICENSEES FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES EVEN IF ALADDIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ALADDIN’S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER EXCEED THE PAYMENTS MADE BY LICENSEE TO ALADDIN UNDER THIS AGREEMENT.
3.5 Termination. In addition to its rights as set forth elsewhere in this Agreement, Aladdin shall have the right to terminate this Agreement upon thirty (30) days written notice to Licensee upon:
(a) violation or breach by Licensee, its officers or employees of any provisions of this Agreement, including, but not limited to, payment;
(b) the termination of the business of the Licensee;
(c) voluntary or involuntary filing of bankruptcy petition or similar proceeding under state law with respect to Licensee; or
(d) Licensee’s becoming insolvent or making any assignment for the benefit of creditors.
The termination of this Agreement shall automatically, and without any further action by Aladdin, terminate and extinguish this License. In the event of termination of this Agreement pursuant to any provision of this Agreement, Licensee shall return to Aladdin, or upon request of Aladdin, destroy all copies of InstallerMaker in the possession of Licensee and certify in writing that the same have been either returned or destroyed. Notwithstanding the foregoing, all provisions hereof relating to confidentiality or non-disclosure shall survive the termination or expiration of this Agreement and any third parties to whom Licensee has licensed the Licensee’s Product may continue to use InstallerMaker provided that such third party is not in breach of its license agreement with Licensee.
3.6 Taxes. Licensee shall, in addition to the payments required hereunder, pay all sales, use, transfer or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby; excluding, however, income taxes on profits which may be levied against Aladdin. Licensee shall reimburse Aladdin for any amount of any such taxes or duties paid or accrued by Aladdin as a result of this transaction.
3.7 Copies of Licensee’s Software. In the event Licensee shall distribute the Licensee’s Software commercially, Licensee shall provide Aladdin, at no charge to Aladdin, one copy of each version of Licensee’s Software that utilizes InstallerMaker, including any updates thereto, within ten (10) days of Licensee’s release of such product for sale.
4. GENERAL
4.1 Entire Agreement. Each party acknowledges that this Agreement constitutes the complete and exclusive statement of the terms and conditions between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties.
4.2 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its reasonable control. Performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay.
4.3 Governing Law. This Agreement and performance hereunder shall be governed by the laws of the State of California.
4.4 Limitation on Action. No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has arisen, with the exception of violation of Aladdin’s rights in InstallerMaker or any other software owned or licensed by Aladdin.
4.5 Enforceability. If any of the provisions of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted.
4.6 Assignment. Licensee may not assign or sub-license, without prior written consent of Aladdin, its rights, duties or obligations under this Agreement, in whole or in part, to any person or entity, which consent shall not be unreasonably withheld. Any such attempted assignment or sub-license shall be void and shall constitute a material breach of this Agreement.
4.7 Survival. All provisions of this Agreement relating to confidentiality or non-disclosure shall survive the termination of this Agreement.
4.8 Notice. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mail, postage paid, certified mail return receipt requested; (iii) if mailed by Express Mail or Federal Express, one (1) day after deposit therewith postage prepaid. All notices shall be addressed to the parties at the respective addresses indicated herein.
4.9 No Waiver. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
4.10 Remedies. The rights and remedies of Aladdin set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it in law or in equity.
4.11 Submission Not Binding. Neither the submission of this Agreement to, nor the execution thereof by, the Licensee shall constitute an offer by Aladdin to license InstallerMaker to the Licensee. This Agreement shall not be or become binding upon Aladdin to any extent or for any purpose unless and until it is executed by Aladdin and a fully executed copy thereof is delivered to the Licensee.
4.12 Headings. The heading used in this Agreement are for reference only, do not form a part of this Agreement and shall not affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized representatives as of the date set forth above.
Aladdin : Licensee:
_______________________ _______________________
Authorized Signature Authorized Signature
_______________________ ________________________
Printed / Typed Name Printed / Typed Name
______________________ ________________________
Title Title
______________________ _________________________
Date Date
SCHEDULE A
License Fee -
The Licensee will pay a licensing fee of ________________________ ($_____) dollars for the initial term of this License.
Distribution Commencement Date: __________________________, 199__
Licensee’s Software will be distributed: (Commercially)(Non-Commercially)
(circle one)
If Licensee’s Software will be distributed commercially, Licensee will distribute StuffIt InstallerMaker installers with the Licensee’s “______________________” software program for the Macintosh.
