SOFTWARE LICENSE AND
DISTRIBUTION AGREEMENT
Foxit Software Company,
LLC Standard ActiveX 2.0
SINGLE DEVELOPER
PLEASE READ
THIS LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE
SOFTWARE.
BY SELECTING "I
ACCEPT..." BELOW, AND CLICKING ON "NEXT", OR BY USING THE SOFTWARE, LICENSEE
ACKNOWLEDGES THAT LICENSEE HAS READ, UNDERSTOOD AND ACCEPTED THE TERMS AND
CONDITIONS OF THIS LICENSE AGREEMENT.
WARNING: IF LICENSEE DOES NOT AGREE TO THE TERMS
AND CONDITIONS OF THIS AGREEMENT, Foxit Software Company, LLC. IS NOT WILLING
TO LICENSE THIS SOFTWARE TO LICENSEE. LICENSEE MAY NOT DOWNLOAD, INSTALL OR USE
THE SOFTWARE. LICENSEE
MUST SELECT THE "I DO NOT ACCEPT..." OPTION BELOW AND THEN CLICK ON "CANCEL".
THIS
SOFTWARE LICENSE AGREEMENT ("Agreement") is made by and between the
individual, company or legal entity that is licensing the Licensed Software
("Licensee"), and Foxit Software company, LLC. ("Foxit"), a Nevada LLC with primary
office located at
1. DEFINITIONS.
1.1 "Foxit
Website" shall mean http://www.foxitsoftware.com.
1.2 "Combined
Product" shall mean the product created by Developer, by incorporating or
embedding the Licensed Software into third party software, including Licensee
software code written by the designated Developer under this Agreement,
1.3 "Developer"
shall mean the sole individual authorized by Licensee under this Agreement to
write software code utilizing the Licensed Software, and/or to produce the
Combined Product. Developer may be
an employee or independent contractor of the Licensee, or Developer may the
Licensee.
1.4 "Effective
Date" shall mean the date on which this Agreement is accepted by Licensee.
1.5 "Licensed
Software" shall mean Foxit ActiveX SDK Standard
1.6 "Specifications"
shall mean the Licensed Software API
specifications and help documentation, available from the Foxit Website.
1.7 "Sub-License
Agreement" shall mean any agreement entered into by and between Licensee and
any other individual or entity under which such individual or entity is granted
a sublicense to the Combined Product.
1.8
"SubLicensee" shall mean any individual or entity that enters into a sublicense
agreement with Licensee for use of the Combined Product. Sublicensee shall also include
distributors of the Combined Product.
2. LICENSE
GRANT.
2.1 Development
License. Subject to the terms and
conditions of this Agreement and effective only during the term of this
Agreement, Foxit grants to Licensee a worldwide, nonexclusive, nontransferable
license to:
A. Interface
the Licensed Software with third party (including Licensee) software by use of
the API (Applications Program Interface); and
B. Incorporate
or embed the Licensed Software with third party (including Licensee) software,
to produce Combined Products.
2.2 Distribution
License. Subject to the terms and
conditions of this Agreement and effective only during the term of this
Agreement, Foxit grants to Licensee a worldwide, nonexclusive, nontransferable
license to:
A. Market
and promote the Licensed Software, but only as a part of the Combined Product;
B. Sublicense
the use of the Licensed Software to Sublicensees, as a tool to render and
display PDF files as set forth in the Specifications, but only as embedded in
or incorporated into Combined Product; the total numbers of distributions for
Combined Products shipped from all sublicensees varies depending on the
licensing cost and are defined as following.
The total number of distributions for Combined Products is set to 10 if
you purchase ActiveX at cost of $799.00.
The total number of distributions for Combined Products is set to 100 if
you purchase ActiveX at cost of $1199.00.
The total number of distributions for Combined Products is set to 1000
if you purchase ActiveX at cost of $1799.00.
The total number of distributions for Combined Products is set to 5000
if you purchase ActiveX at cost of $2499.00.
|
Number of Distributions for Combined Product (all
sublicensee) |
Price |
|
10 |
$799.00 |
|
100 |
$1199.00 |
|
1000 |
$1799.00 |
|
5000 |
$2499.00 |
C. Support
and maintain the Licensed Software as embedded in or incorporated into the
Combined Product form;
D. Translate
the Licensed Software documentation into foreign languages as necessary for
purposes under this Agreement.
2.3 Restrictions
on License Grant.
A. Licensee
shall designate one individual as Developer under this Agreement. No other person may use the Licensed
Software as described in Paragraph 2.1 above.
B. Developer
will be issued a licensed standard ActiveX 2.0 package by Foxit. If Licensee
wishes to replace the designated Developer, Licensee must provide notice to
Foxit by sending email to vip@foxitsoftware.com or in accordance with the Notices
provision in this Agreement, and Foxit will transfer the licensed package to
the newly designated Developer.
Upon such transfer of the licensed ActiveX package, the previous
Developer shall cease all use of the Licensed Software, shall destroy and/or
purge the Licensed Software and all copies in any and all forms and from all
media and from all devices of Developer, and Licensor shall certify in writing
to Foxit that they have been destroyed and/or purged.
C. Licensee
shall keep a record of the identity of the Developer, each copy made of the
Licensed Software, where each such copy is located, and in whose custody; such
record shall be provided to Foxit upon written notice.
D. Licensee
may make one backup/archive copy of the Licensed Software and one copy of the Licensed
Software for each server or workstation on which the Developer works.
E. Licensee
may not modify the Licensed Software.
F. Licensee
may not use the Licensed Software to develop, license, sublicense or resell any
product or service that mimics, duplicates or competes with the functionality
of the Licensed Software.
G. Licensee
shall not have the right to license, sublicense, or otherwise transfer the
Licensed Software as a stand-alone product, but only as part of the Combined
Product.
H. Except
as expressly provided under this Agreement, Licensee shall not have the right
to license, sublicense or otherwise transfer the Licensed Software or (b) to
use the Licensed Software in whole or in part for any use or purpose, other
than as provided in this Agreement.
I. Licensee
shall enter into Sublicense Agreement with each Sublicensee that is at least as
restrictive as this Agreement, that contains terms and conditions consistent
with the provisions of this Agreement with the following restrictions, as well
as other restrictions set forth elsewhere in this Agreement:
(1) The
Sublicense Agreement shall not grant to Sublicensee the rights set forth in the
Developer License at 2.1 above and shall not pass on any provisions related
thereto;
(2) The
Sublicense Agreement is permitted to grant to Sublicensee the rights granted to
Licensee under the Distributorship License at Paragraph 2.2 above; and
(3) Foxit
shall have no responsibility or liability to Sublicensee for any loss, claim or
damage of any kind arising under this Agreement or under any Sublicense
Agreement entered into by Licensee and Sublicensee, for any reason
whatsoever. Licensee shall assume
sole liability vis-a-vis the Sublicensee and Sublicense Agreements, and shall
disclaim in all Sublicense Agreements all liability arising out of any cause
whatsoever, on the part of Foxit; and
(4) Sublicensee
rights shall be independent of this Agreement and shall survive termination of
this Agreement.
J. Licensee
is responsible in making sure the total number of distribution does not exceed
the number defined in 2.2B. If
Licensee learns of any breach of a Sublicense Agreement that could damage
Foxit, Licensee shall take prompt, commercially reasonable corrective action at
its expense to remedy the breach and/or obtain all other appropriate relief,
and in addition, shall immediately notify Foxit in writing of the breach and
corrective action taken. The
execution of these duties by Licensee shall not preclude Foxit from also taking
corrective action. In addition, if
a breach of a Sublicense Agreement occurs, that would, in Foxit's opinion,
result in irreparable harm to Foxit, unless injunctive or other equitable
relief is entered into to restrain the violation, Licensee shall, as requested
by Foxit, either: (a) use its best efforts to obtain such equitable relief as
promptly as reasonably possible, or (b) assign its rights under the license to
Foxit to permit it to seek such equitable relief.
3. PAYMENT.
3.1 Licensee
agrees to pay a license fee to Foxit in accordance with the Foxit's online
pricing schedule found on the Foxit Website or as otherwise mutually
agreed. Payment is due upon receipt
of Licensee's order by Foxit, or activation of a serial number, whichever
occurs first. In the event that
payment is not made within thirty days of the payment due date, Foxit may
either, at its option, terminate this Agreement, or impose interest on the
amount due and owing at the rate of 1.5% per month.
3.2 No
royalties, sublicense fees or other fees are due to Foxit under this Agreement
if Licensee does not intend to renew the annual service with Foxit. Should
Licensee decide to continue the annual service support, Licensee should make
payment as defined in 6. SUPPORT.
3.3 All
license fees and any other charges are exclusive of all federal, state, local
and foreign taxes, levies and assessments.
The Licensee will pay all such taxes, levies and assessments arising out
of this Agreement, excluding any income tax imposed on Foxit.
4. TERM. The term of this Agreement shall begin on its Effective
Date and shall continue in perpetuity or until this Agreement is terminated.
5. TERMINATION.
5.1 Licensee
may terminate this Agreement upon thirty (30) days' prior written notice.
5.2 Foxit
shall have the right to terminate this Agreement as follows:
A. Upon
ten (10) days prior written notice in the event that Licensee materially
breaches any of the terms and conditions of this Agreement. However, Foxit reserves the right to
send a written notice to Licensee, describing the breach, and Licensee shall
have thirty days to cure the breach; if the breach is not cured within the
thirty day period, Foxit may terminate this Agreement upon written notice at
any time thereafter.
B. Upon
written notice, in the event Licensee (1) terminates or suspends its business;
(2) becomes subject to any bankruptcy or insolvency proceeding under Federal or
state statute or (3) becomes insolvent or becomes subject to direct control by
a trustee, receiver or similar authority.
C. Termination
of this Agreement under this Paragraph 5.2 shall be in addition to and not in
lieu of any other remedies at law or at equity available to Foxit.
5.3 Upon
termination of this Agreement, all licenses granted to Licensee hereunder shall
also terminate. Licensee shall
immediately cease Developer's work with the Licensed Software, including the
production of Combined Products, and shall also immediately cease using,
sublicensing, distributing, marketing, promoting, and translating, the Licensed
Software embedded in or
incorporated into Combined Product.
Within five days after termination, Licensee shall destroy and/or purge
the Licensed Software and all copies in any and all forms and from all media
and from all devices in the possession or control of Licensee, including
Combined Products which include the Licensed Software, and shall certify in
writing to Foxit that they have been destroyed and/or purged.
5.4 Notwithstanding
the above, Sublicenses granted prior to termination of this Agreement shall not
terminate, and Sublicensees may continue to use the Licensed Software embedded in or incorporated into Combined
Product.
6. SUPPORT. Foxit shall provide to Licensee online bug fixes for
the Licensed Software in accordance with its standard practices at no
additional charge for one year starting from the date of the execution of this
agreement. After one year licensing
term, Licensee may choose to renewal the support service with Foxit at a cost of $500.00 (Five Hundred
US Dollars) payable to Foxit within
30 days before the previous service term expires. All such bug fixes shall be
considered Licensed Software and shall be subject to the terms and conditions
of this Agreement.
7. CONFIDENTIALITY.
7.1 Licensee
agrees that the Licensed Software contains the valuable trade secrets and other
intellectual property of Foxit.
Licensee further agrees that the Licensed Software constitutes
proprietary and confidential information of Foxit and that its disclosure to
unauthorized parties would cause irreparable harm to Foxit.
7.2 Licensee
shall use, at a minimum, the same degree of care and discretion to limit
disclosure of the Licensed Software as it uses to protect its own highly
proprietary and confidential information, but in no case with any less degree
than reasonable care; shall restrict disclosure of Licensed Software to
Licensee's employees, and to third party consultants and contractors of
Licensee who are legally bound by Licensee to protect the Licensed Software as
confidential information under terms substantially similar to, but no less
stringent than, those included in this Agreement, with a "need to know" in
order to effect the purposes of this Agreement, and not disclose, use for its
own benefit, or otherwise appropriate, copy, distribute or transmit the
Licensed Software, to any other person or entity except as otherwise permitted
by this Agreement, without the prior written consent of the other party; and
shall advise the employees, third party consultants and contractors of Licensee
who receive the Licensed Software of the confidential nature of the Licensed
Software and their obligations with respect thereto under this Agreement.
7.3 Licensee must reproduce and include the
copyright notice and any other notices that appear on the Licensed Software on
any copies and any media therefore.
Licensee shall not (and shall not allow any third party to) (a)
decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct
or discover any source code or underlying ideas or algorithms, file formats or
programming or interoperability interfaces of the Licensed Software by any
means whatsoever; or (b) remove any product identification, copyright or other
notices from the Licensed Software.
7.4 Licensee
acknowledges and agrees that in the event of a breach of this Paragraph 7,
Foxit will suffer irreparable injuries for which there would be no adequate
remedy at law. Accordingly, Foxit
shall be entitled to a preliminary and final injunction without the necessity
of posting any bond or undertaking in connection therewith to prevent any
further breach of these confidentiality obligations or further unauthorized use
of Confidential Information. This
remedy is separate and apart from any other remedy that Foxit may have under
this Agreement.
8. OWNERSHIP.
8.1 Licensee
agrees that title and ownership of Licensed Software, including such portions
that are embedded in or incorporated into the Combined Product) are and shall
always remain the sole and exclusive property of Foxit, and that Licensee gains
no ownership interests therein, except for the limited license rights granted
under this Agreement. Licensee acknowledges that neither Licensee, nor any
Sublicensee of the combined Product, shall acquire any rights of ownership in
the Licensed Software. At Foxit's
request, Licensee will cause the execution of any documents that may be
appropriate to perfect Foxit's exclusive ownership rights in the Licensed
Software. In addition, Licensee
hereby assigns to Foxit all right, title and interest in any translations of
the documentation of the Licensed Software into any language, and will execute
any instruments that may be required to perfect Foxit's exclusive ownership
right in the translated documentation.
9. WARRANTIES
AND LIMITATION OF LIABILITY.
9.1 Foxit
warrants only that it has the right to grant the rights and licenses granted
hereunder to Licensee, and that the Licensed Software does not infringe upon
any
9.2 Foxit
warrants that the Licensed Software will, for a period of thirty (30) days from
the Effective Date if the Licensed Software is downloaded from the Foxit
Website or thirty (30) days from the date on which the serial number is issued
if the Licensed Software is not downloaded, substantially conform to its
Specifications. This warranty shall not be applicable in the event that
Licensee makes any modifications to the Licensed Software. Licensee's sole
remedy in the event of a breach of this warranty shall be that Foxit, at its
sole option, will either replace the Licensed Software that is returned to
Foxit within the warranty period or terminate this Agreement and refund the
license fee (but not shipping or other such charges) that Licensee paid for the
Licensed Software.
9.3 THE
EXPRESS WARRANTIES SET FORTH IN PARAGRAPHS 9.1 AND 9.2 ABOVE ARE THE ONLY
WARRANTIES MADE BY Foxit AND ARE IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF
Foxit FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR
PERFORMANCE OF THE LICENSED SOFTWARE PROVIDED UNDER THIS AGREEMENT. EXCEPT FOR THOSE EXPRESS WARRANTIES, THE
LICENSED SOFTWARE IS PROVIDED AS-IS, Foxit MAKES AND LICENSEE RECEIVES NO OTHER
WARRANTY, EXPRESS OR IMPLIED, AND Foxit EXPRESSLY EXCLUDES ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY,
NON-INTERFERENCE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, OR THOSE
ARISING FROM THE COURSE OF DEALING, COURSE OF TRADE, OR THOSE ARISING UNDER
STATUTE. Foxit DOES NOT WARRANT THAT THE
LICENSED SOFTWARE PROVIDED UNDER THIS AGREEMENT WILL MEET LICENSEE'S
REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE
UNINTERRUPTED OR ERROR-FREE.
9.4 Foxit
SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT
FOR INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL
DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE AND LOST DATA, EVEN IF IT HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF
ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER
TORTS. IN NO EVENT SHALL Foxit'S
LIABILITY IN THE AGGREGATE EXCEED THE AMOUNT OF LICENSE FEES PAID FOR THE
LICENSED SOFTWARE.
9.5 SOME
STATES DO NOT PERMIT THE LIMITATION OR EXCLUSION OF LAIBLITY FOR INCIDENETAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCULSION MAY NOT APPLY TO
YOU.
10. INDEMNIFICATION
BY Foxit.
10.1 Foxit
at its own expense will defend any action brought against Licensee to the
extent that it is based on a claim that the Licensed Software used within the
scope of this License Agreement infringes any United States patent, copyright
or other property right, provided that Licensee immediately informs Foxit in
writing of such claim. Foxit shall have the right to control the defense of all
such claims, lawsuits and other proceedings. In no event shall Licensee settle
any such claim, lawsuit or proceeding without Foxit's prior written
approval. Such indemnification
shall not apply in the event that the claim of infringement is based upon (a)
the use of the Licensed Software in a manner prohibited under this Agreement,
or (b) the combination, operation or use of the Licensed Software with other
software, hardware or materials, if such claim would not have arisen but for
such combination, operation or use.
10.2 If,
as a result of any claim of infringement against any United States patent, copyright
or other property right, Foxit is enjoined from using the Licensed Software, or
if Foxit believes that the Licensed Software is likely to become the subject of
a claim of infringement, Foxit at its option and expense may: (a) procure the
right for Licensee to continue to use the Licensed Software, (b) replace or
modify the Licensed Software so as to make it non-infringing, or (c)
discontinue the license granted herein on one month's written notice and refund
to Licensee the unamortized portion of the license fees hereunder (based on
four years straight line depreciation, such depreciation to commence on the
Effective Date of this Agreement). The foregoing states the entire liability of
Foxit with respect to infringement of any copyrights, patent, license or other
property right by the Licensed Software or any parts thereof.
11. INDEMNIFICATION
BY LICENSEE. Licensee shall indemnify Foxit and hold
it harmless from any loss, claim, damages costs, expenses, obligations,
liabilities, actions, suits, including without limitation, interest and
penalties, reasonable attorneys' fees and costs and all amounts paid in
settlement of any claim, action or suite that may be asserted against Foxit or
that Foxit shall incur or suffer that arise out of, result from or relate
to: (a) the non-fulfillment of any
agreement, covenant or obligation of Licensee in connection with this
Agreement: (b)any breach of any warranty or representations made by Licensee
hereunder; (c) the use by Sublicensees of the Licensed Software, any claim of
any nature whatsoever brought by any Sublicensee or a third person or entity
who may suffer damages of any sort as a direct or indirect result of Licensee
activities relating to or in connection with the Licensed Software and/or the
Combined Product; (d) or any claims of infringement that arise out of, result
from, or relate to any modification, enhancement or misuse of the Licensed
Software or Combined Products by Licensee; and (e) any claim arising from the
sublicensing of the Licensed Product or Combined Product.
12. NOTICES. Any notice required
or permitted under the terms of this Agreement shall be in writing and shall be
given by first class U.S. mail (postage pre-paid, registered and with
return receipt requested), nationally recognized express courier, or by
hand. Notices to Foxit shall be
addressed to the physical address listed on the Foxit Website and marked
"Attention: Contracts", and shall be deemed to have been given on the date of
actual delivery. Notices to
Licensee shall be addressed to the most recently provided physical address
provided to Foxit, and shall be effective three (3) days after delivery to the
United States Postal Service if mailed, on the date of actual delivery when
delivered by hand or by express courier.
In the event that the most recent address provided by Licensee is
incorrect, the notice shall be deemed effective on the third day after Foxit
has sent the notice, irrespective of the delivery system used. Email and
facsimile may not be used for notices under this Paragraph except as otherwise
specifically noted in this Agreement.
13. EXPORT. The Licensee shall
comply with
14. RESTRICTED
RIGHTS. The Licensed Software licensed hereunder
is subject to restricted rights. Any use, duplication or disclosure by the
Government of the United States of America or any person or entity acting on
its behalf is subject to the restrictions set forth in subdivision (c)(1)(ii)
of the Rights in Technical Data and Computer Software Clause at DFARS (48 CFR
252.227-7013) for DoD contracts; in paragraphs (c)(1) and (2) of the Commercial
Computer Software-Restricted Rights clause in the FAR (48 CFR 52.227-19) for
civilian agencies; or, in the case of NASA, in Clause 18-52.227-86(d) of the
NASA Supplement to the FAR, or in other comparable agency clauses.
15. GENERAL.
15.1 Licensee's
remedies as set forth in this Agreement are exclusive.
15.2 Licensee
shall not use Foxit's name, trademark or trade name in publicity releases or
advertising without securing the prior written consent of Foxit, which shall
not be unreasonably withheld.
15.3 Nothing
in this Agreement or in the course of dealing between Foxit and Licensee shall
be deemed to create between Foxit and Licensee (including their respective
directors, officers, employees, and agents) a partnership, joint venture,
association, employment or agency relationship, or any relationship other than
that of independent contractors with respect to each other.
15.4 Any
provision of this Agreement that contemplates performance subsequent to the
termination of this Agreement, including but not limited to obligations related
to ownership of intellectual property, will survive the termination of this
Agreement for any reason.
15.5 This
Agreement shall be governed by the substantive laws of the State of
15.6 Except
for the failure to make payments when due, neither party will be liable to the
other by reason of any failure in performance of this Agreement if the failure
arises out of the unavailability of communications facilities or energy
sources, acts of God, acts of the other party, acts of governmental authority,
fires, strikes, delays in transportation, riots or war, or any cause beyond the
reasonable control of that party.
15.7 No
waiver, alteration, or modification of any of the provisions hereof will be
binding unless in writing and signed by a duly authorized representative of the
party to be bound. Neither the
course of conduct between the parties nor trade usage will act to modify or
alter the provisions of this Agreement.
If Licensee issues a purchase order or other similar document it shall
be for Licensee's internal purposes and is not a precondition to payment of
monies otherwise due and owing to Foxit, and, even if it is acknowledged by
Foxit, the terms and conditions of such purchase order or similar document will
have no effect on this Agreement.
15.8 Should
any provision of this Agreement be held to be void, invalid or inoperative, the
remaining provisions of this Agreement shall not be affected and shall continue
in effect and the invalid provision shall be deemed modified to the least
degree necessary to remedy such invalidity.
15.9 Licensee
may not assign its rights or obligations under this Agreement. Any attempted assignment, delegation, or
transfer in contravention of this Agreement shall be null and void.
15.10 The
provisions of this Agreement are for the sole benefit of the parties, and no
third party shall either enjoy the benefits of this Agreement or have any
rights hereunder.
15.11 The
headings in this Agreement are for reference purposes only; they will not
affect the meaning or construction of the terms of this Agreement.
15.12 This
Agreement contains the complete and exclusive understanding of the parties with
respect to the subject matter hereof, and supersedes all prior agreements,
written or oral, with respect to the subject matter addressed in this
Agreement.