This AGREEMENT is made between HK TLS ELECTRONICS CO., LIMITED having its principal place of business at Hong Kong, (“Licensor“), and online customer (“Licensee“).
Licensee is in the business of developing and marketing software. Licencor has developed certain proprietary software products including software code. Licensee now wishes to license, and Licencor wishes to grant, a license interest in the source code version of the Software to allow Licensee to develop a customized version of the Software and/or integrate some or all of the functionality of the Software into Licensee’s own programs, all subject to the terms and conditions set forth herein.
THEREFORE, with the intent to be legally bound, the parties hereby agree as follows:
As used in this Agreement, the following capitalized terms shall have the definitions set forth below:
“Derivative Works” are works developed by Licensee, its officers, agents, contractors or employees, which are based upon, in whole or in part, the Source Code and/or the Documentation and may also be based upon and/or incorporate one or more other preexisting works. Derivative Works may be any improvement, revision, modification, translation (including compilation or recapitulation by computer), abridgment, condensation, expansion, or any other form in which such a preexisting work may be recast, transformed, or adapted. For purposes hereof, a Derivative Work shall also include any compilation that incorporates such a preexisting work.
“Documentation” is written, printed or otherwise recorded or stored (digital or paper) material relating to the Software and Source Code, including technical specifications and instructions for its use including Source Code annotations and other descriptions of the principles of operation of the Source Code and Tools and instructions for its use.
“Improvements” shall mean, with respect to the Source Code, all modifications and changes made, developed, acquired or conceived after the date hereof and during the entire term of this Agreement.
“Source Code” is the computer programming source code form of the Software in the form provided by Licensor to Licensee, and includes all non-third-party executables, libraries, components, and Documentation created or used in the creation, development, maintenance, and support of the Software as well as all updates, error corrections and revisions thereto provided by Licensor, all provided by Licensor for use, in whole or in part, either by itself or in the development of Derivative Works.
“Tools” are programs, techniques, and development environments used by Licensor in the creation, development, maintenance and support of the Source Code and Software.
Source Code License.
(a) Grant of License. For the consideration set forth below, Licensor hereby grants to Licensee, and Licensee hereby accepts the worldwide, non-exclusive, perpetual, irrevocable, royalty-free rights and licenses set forth below:
(i) The right and license to use and incorporate the Source Code and/or the Documentation, in whole or in part, to develop Derivative Works (including the integration of all or part of the Source Code into Licensee’s own software), and to compile, use, copy, and distribute executable versions of such Derivative Works.
(ii) The right and license to use and copy the Source Code, in whole or in part, in compiled, object-code form for Licensee’s internal testing and development use.
(iii) The right and license to make a reasonable number of backup and archival copies of Source Code and Documentation.
As used herein, “Source Code” shall also include all Licensor-developed Tools useful in the development of Derivative Works. To the extent Tools are third party products, Licensor shall identify all such third party Tools to Licensee, and to the extent such third party Tools are not commercially available to Licensee on commercially reasonable terms, Licensor shall use its best efforts to assist Licensee in its efforts to obtain access to such Tools. From time to time, upon the mutual consent of the parties, Exhibit A may be amended, in a writing signed by both parties, to include additional Licensor software. Upon such amendment, Licensee shall acquire the license rights set forth above in the new Licensor software (as “Software” hereunder) pursuant to the terms and conditions set forth herein, as amended and/or supplemented by terms and conditions as may be set forth in the revised Exhibit A including, but not limited to, such reasonable, additional payment terms as may be mutually agreed between the parties.
(b) Scope; Rights and Responsibilities.
(i) Licensor shall deliver to Licensee one complete copy of the Source Code, and one complete copy of the Documentation.
(ii) The Source Code is intended for the use of Licensee in development efforts. Licensee has no right hereunder to compile such Source Code in the form provided hereunder by Licensor to Licensee and distribute the resulting, unmodified Licensor Software.
(iii) Licensee does not have the right to distribute the Source Code, whether modified or unmodified. Licensee’s distribution hereunder shall be limited to the distribution of the binary (object code) form of Derivative Work resulting from compiling of the Licensee-modified Source Code.
(iv) Notwithstanding the restrictions in Section 2(b)(iii) above, Licensee may appoint, or work with, third parties to perform development services using the Source Code, the source code to Derivative Works and/or the Documentation on behalf of, or working with, the Licensee. Release of Source Code, Derivative Work source code and/or Documentation to such third parties shall be subject to the agreement of such third parties to be subject to appropriate limited, non-transferable sub-license terms and conditions. Furthermore, such Licensee contractors shall provide a written statement saying he/she will not hold any copies of the Source Code following termination of their agreement with the Licensee.
(i) Software and Source Code. Except for the rights granted to Licensee herein, all right, title, copyright, and interest in the Software, Source Code, Software Modifications and Error corrections will be and remain the property of Licensor.
(ii) Derivative Works. All right, title, copyright, and interest in all Derivative Works and Improvements created by, or on behalf of, Licensee will be the property of Licensee. Licensee shall be entitled to protect intellectual property in all such Derivative Works and Improvements in any country as it may see fit including without limitation seeking copyright and/or patent protection; provided, however that Licensee may mark with its own copyright notice and register copyrights in Derivative Works as works which constitute original works of authorship, so long as such Derivative Works are identified in such registration as based upon pre-existing works of Licensor.
(a) Licensee shall pay to Licensor the amounts set forth on Exhibit A, attached hereto and incorporated by reference herein, as one-time, upfront fees in consideration for the licenses and rights granted hereunder (the “License Fee“). The License Fee to be paid by Licensee hereunder shall be paid by wire, per instructions forwarded to <<Customer>>. The License Fee will be paid in two installments one for 60% of the amount set forth on Exhibit A due at time of contract signature and one for 40% of the license fee due 90 days from the date of contract signature.
(b) Once paid, the License Fees shall be non-refundable; provided, however that in the event the Source Code delivered to Licensee is in breach of Licensor’s representation and warranty set forth in Section 5(b) below, Licensee shall be entitled to a refund in full, without set-off or holdback, of all License Fees paid hereunder.
(a) Support and Maintenance. We provide no support or maintenance
Representations and Warranties.
(a) Mutual. Each of the parties represents and warrants to the other as follows.
(i) Party is a legal entity duly organized, validly existing and in good standing in its jurisdiction of incorporation;
(ii) Party has the corporate power and authority to conduct its business as presently conducted and to execute, deliver and perform this Agreement.
(iii) This Agreement has been duly and validly executed and delivered by such party and constitutes the legal, valid and binding obligations of such party respectively, enforceable against such party in accordance with their respective terms;
(iv) the execution, delivery and performance of this Agreement does not and will not violate such party’s charter or by-laws; nor require any consent, authorization, approval, exemption or other action by any third party or governmental entity.
(b) Licensor warrants that, at the time of delivery, the files resulting from compiling the Source Code will be true copies of Licensor’s most recently released, standard version of Software.
- the files resulting from compiling the Source Code will function materially as set forth in user documentation and other published functionality provided by Licensor to customers and potential customers describing the Software;
- Software Modifications provided pursuant to Support and Maintenance Services will not materially diminish the features or functions of or the specifications of the Software as they existed as of the execution of this Agreement; and.
(c) Source Code Usability. Licensor represents and warrants that the Source Code provided to Licensee is reasonably well written so as to allow a reasonably skilled computer programmer to understand each line of code, the coding hierarchy and program architecture of the Source Code. Furthermore, Licensor represents and warrants that the coding standards and development methodologies used in developing the Source Code are consistent with industry best practices.
(d) Malicious Code. Licensor warrants that it has successfully tested the Source Code to determine if Software compiled therefrom contain threats known as software viruses, time or logic bombs, trojan horses, worms, timers or clocks, trap doors or other malicious computer instructions, devices or techniques that can or were designed to allow for (i) unauthorized, surreptitious access to data, network or operating system services and/or functionality; (ii) erase data or programming, (iii) infect, (iv) disrupt, (v) damage, (vi) disable, (vii) shut down a computer system or any component of such computer system, including, but not limited to, its security or user data, or (viii) otherwise cause any computers on which such Software is installed and/or executed to become inoperable or incapable of being used (“Malicious Code“). Licensor further warrants that the Source Code and Software compiled therefrom are free and clear of and contain no Malicious Code and that Supplier will maintain master copies that are free and clear of and contain no Malicious Code. Upon Licensee’s request, Licensor shall provide such master copy to Licensee for comparison with and correction of copies of the Source Code in Licensee’s custody or possession and, upon Licensee’s request, Licensor shall correct such copies.
(e) Title. Licensor represents and warrants that it is the exclusive owner of all intellectual property in the Software (including the Source Code) and has good and marketable title to the Software (including the Source Code) free and clear of all liens, claims and encumbrances of any nature whatsoever (collectively, “Liens“). Further, Licensor represents and warrants that no open source software code has been used in the development of the Software or any component thereof, and neither the Software, nor any component thereof, is subject to “open source” licensing requirements (viral or non-viral) including without limitation software made available under any of the GNU General Public License, the GNU Lesser General Public License, the BSD License, the Apache License or the Mozilla Public License, or any similar license arrangement including without limitation (i) licensing arrangements requiring the public disclosure of source code derived from, or incorporating, such open source software or (ii) licensing arrangements requiring software derived from, or incorporating such open source software to also be made open source. Licensor’s grant of license and rights to Licensee hereunder does not, and will not infringe any third party’s property, intellectual property or personal rights. Licensor represents and warrants that no third parties hold or have been granted intellectual property rights in the Source Code contrary to the rights granted to Licensee herein or which does, or with the passage of time, or exercise of an option or springing right, would adversely affect the right, title and interest granted to Licensee hereunder.
(a) Indemnification for Breach of Representations. Licensor shall indemnify, hold harmless and defend Licensee and its officers, directors, agents, employees, and affiliates, at Licensor’s expense, from and against any and all claims, demands, actions, costs, expenses, liabilities, judgments, causes of action, proceedings, suits, losses and damages of any nature, which are threatened or brought against (or are suffered or incurred by) Licensee or any such person by any third party based upon a breach of the representations or warranties of Licensor set forth herein (including without limitation in Subsections (b), (c) or (d) above) as well as such claims which (i) arise out of or relate to the Software and/or Source Code as delivered by Licensor to Licensee; (ii) arise out of events first occurring or conditions first existing prior to the first general commercial release of Licensee product based on, or incorporating, the Source Code; or (iii) those arising out of Licensor’s actions (or omissions) with respect to the Software and/or Source Code.
(b) Intellectual Property Indemnification. Licensor shall indemnify, hold harmless and defend Licensee and its officers, directors, agents, employees, and affiliates, at Licensor’s expense, from and against any and all claims, demands, actions, costs, expenses, liabilities, judgments, causes of action, proceedings, suits, losses and damages of any nature, which are threatened or brought against (or are suffered or incurred by) Licensee or any such person by any third party based upon a breach of the representation and warranty set forth in Subsection (b) above or based upon infringement of a copyright, trade secret or similar proprietary right (each a “Infringement Claim“) arising out of Licensee’s use of the Source Code (including without limitation Licensee’s development of Derivative Works, integration of Derivative Works with Licensee’s own products, and Licensee’s sale/license of Derivative Works); provided, however that Licensor shall have no obligation to Licensee under this Section with respect to any Infringement Claim based solely upon Licensee’s own modifications to the Source Code. In the event an Infringement Claim is found by a court of competent jurisdiction to constitute an infringement and Licensee’s use of the Source Code and/or Derivative Works (including without limitation its continued development activities or sale/licensing activities) is enjoined, Licensor shall, at its sole option, do one of the following: (i) procure for Licensee the right to continue use of the Source Code and Derivative Works (including without limitation its continued development activities or sale/licensing activities); (ii) provide modifications to the affected Source Code and/or Derivative Works so that its use (including continued development activities and sale/licensing activities) becomes non-infringing; or (iii) if none of the foregoing alternatives is reasonably available to Licensor, Licensor shall refund the full value of fees paid by Licensee hereunder.
(a) Subject to Licensee’s payment obligations hereunder, this Agreement shall commence as of the execution of this Agreement and shall continue until terminated by Licensee upon 30 days’ prior written notice to Licensor.
(b) Survival. In the event this Agreement is terminated for any reason, the provisions set forth in Sections 2(a), 2(b), 2(c), 5, 6 and 7(b) shall survive.
(a)General Provisions. This Agreement:
(i) may be amended only by a writing signed by each of the parties;
(ii) may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument;
(iii) contains the entire agreement of the parties with respect to the transactions contemplated hereby and supersedes all prior written and oral agreements, and all contemporaneous oral agreements, relating to such transactions;
(iv) shall be governed by, and construed and enforced in accordance with, the laws of Hong Kong without giving effect to any conflict of laws rules and the U.N. Convention for the International Sale of Goods; and
(v) shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assigns. Each of the parties hereby irrevocably submits to the jurisdiction of Hong Kong for the purposes of any action or proceeding arising out of or relating to this Agreement or the subject matter hereof and brought by any other party; provided, however any party may at its option seek injunctive relief in any court with relevant jurisdiction where such other party or such assets may be found or where such other party may be subject to personal jurisdiction, and may effect service of process as provided under any applicable law. The rights and remedies of the parties hereunder are cumulative and not exclusive of any rights or remedies which the parties would otherwise have. The waiver by a party of any breach or violation of any provision of this Agreement shall not operate or be construed a waiver of any subsequent breach or violation hereof.
(b) Assignment. Licencor may not assign, pledge or otherwise transfer, whether by operation of law or otherwise, this Agreement, or any of its obligations here under, without the prior written consent of Licensee, which consent shall not be unreasonably withheld.
(d) Severability. It is the intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies of each jurisdiction in which enforcement hereof is sought. In furtherance of the foregoing, each provision hereof shall be severable from each other provision, and any provision hereof which is unenforceable in any jurisdiction shall be subject to the following: (i) if such provision is contrary to or conflicts with any requirement of any statute, rule or regulation in effect in such jurisdiction, then such requirement shall be incorporated into, or substituted for, such unenforceable provision to the minimum extent necessary to make such provision enforceable; (ii) the court, agency or arbitrator considering the matter is hereby authorized to (or, if such court, agency or arbitrator is unwilling or fails to do so, then the parties shall) amend such provision to the minimum extent necessary to make such provision enforceable, and the parties hereby consent to the entry of an order so amending such provision; and (iii) if any such provision cannot be or is not reformed and made enforceable pursuant to clause (i) or (ii) above, then such provision shall be ineffective in such jurisdiction to the minimum extent necessary to make the remainder of this Agreement enforceable in such jurisdiction. Any application of the foregoing provisions to any provision hereof shall not (1) effect the validity or enforce-ability of any other provision hereof or (2) prevent such provision from being enforced as written in any other jurisdiction.