These Terms and Conditions are hereby incorporated by this reference into the attached Technology Partnership Agreement (collectively, this “Agreement”) entered into by and between Ceetron AS (“CEETRON”) and the Integrator listed in the Technology Partnership Agreement (“Integrator”). Terms used in initial caps but not defined below have the meanings given in the Technology Partnership Agreement. The Parties agree as follows:
“Distributor” means a third party to whom Integrator grants the right to demonstrate, market, distribute, sublicense and support the Integrated Products.
“Integrated Product” means an Integrator Product with which the CEETRON Software is embedded or combined.
“Integrator Materials” means all information, documents, items, materials, techniques, know-how, software, materials (regardless of the form or medium in which they are disclosed or stored) and any other intellectual property rights owned by or licensed to Integrator, whether before or after the date of this Agreement, which, subject to this Agreement, are used in connection with this Agreement.
“Integrator Product” means each software program developed or licensed by Integrator that is set forth and described in Exhibit A to the Technology Partnership Agreement, including any related user documentation, and any release, version or enhancement thereto, which will be combined with the CEETRON Software or in which the CEETRON Software will be embedded, as permitted under this Agreement.
“Integrator Trademarks” means the Trademarks of Integrator and its applicable licensors as set forth on the Technology Partnership Agreement.
“Intellectual Property Rights” means any patent, copyright, rights in Trademarks, trade secret rights, moral rights and other intellectual property rights or other proprietary rights arising under the laws of any jurisdiction.
“Licensee” means a third party to whom the Integrated Products are sublicensed in accordance with the terms of this Agreement.
“Recurring Fee” means the quarterly or annual partnership, license and maintenance, or development and maintenance fee to be paid by Integrator to CEETRON, as the case may be and as more specifically set forth in Exhibit B to the Technology Partnership Agreement.
“Revenue Sharing Fee” means the distribution, subscription, royalty, and any other license fee to be paid by Integrator to CEETRON, as more specifically set forth in Exhibit B to the Technology Partnership Agreement.
“Seat” means (i) one computer for non-networked single user environments, or (ii) one permitted or possible concurrent user for networked or multi-user terminal based environments.
“Standard Releases” means releases of the CEETRON Products that may contain updates, enhancement and/or improvements, along with the applicable documentation, via access to a dedicated download site, as made available from time to time by CEETRON.
“Subdistributors” means third parties to whom Distributors grant the right to demonstrate, market, distribute, sublicense and support the Integrated Products.
“Trademarks” shall mean any trademarks, service marks, trade dress, trade names, corporate names, proprietary logos or indicia and other source or business identifiers.
“CEETRON Documentation” means the user documentation provided with any CEETRON Software release.
“CEETRON Product” means both the CEETRON Software and the CEETRON Documentation.
“CEETRON Software” means the software owned by or licensed to CEETRON as identified and described in Exhibit A to the Technology Partnership Agreement, including Standard Releases, that is provided to Integrator by CEETRON in object code form pursuant to this Agreement, and any copies thereof.
“CEETRON Trademarks” means the Trademarks of CEETRON and the Trademarks of CEETRON’s licensors (if any) as set forth in Exhibit C to the Technology Partnership Agreement.
2. Territory and appointment
2.1 Territory. “Territory” means all countries of the world, excluding those countries where the CEETRON Software is prohibited from being accessed, sent and/or used by applicable laws, regulations, orders or other restrictions, including, without limitation, those regarding import and export of computer software, technical data or derivative of such software or technical data, as further referenced in Section 11 below; provided that CEETRON reserves the right to exclude any country from the Territory if at any time the laws of such country in CEETRON’s reasonable judgment render CEETRON unable to protect CEETRON’s Intellectual Property Rights in the CEETRON Products or cause uncertainty in CEETRON’s ability to license and protect its rights in the CEETRON Software. The rights of Integrator, Distributors and Subdistributors to distribute and sublicense the CEETRON Software in any such country shall terminate upon receipt of written notice from CEETRON and/or Integrator.
2.2 Appointment of Distributors. CEETRON consents to the sublicense by Integrator to Distributors, and to their sublicense to Subdistributors, of the right to market, distribute, sublicense and provide support for the CEETRON Software to Licensees within the Territory only when embedded within the Integrated Products, for installation and use exclusively within the Territory, in accordance with the terms of this Agreement.
3.1 License Grant (Integrator). CEETRON hereby grants to Integrator during the Term of this Agreement a non-exclusive, non-transferable (except as provided in Section 12.1) license to use and combine one or more CEETRON Products with Integrator Products (using an on premises and/or cloud hosted Software as a Service (“SaaS”) based product offering, as set forth in Exhibit A and/or Exhibit B of the Agreement) within the Territory to develop Integrated Products, and to market and distribute to Licensees (or, in the case of a SaaS offering, host and provide Licensees access to) such Integrated Products within the Territory. Except as expressly stated in this clause 3.1 and insofar and to the extent permitted by statutory law, the following restrictions and any additional terms set forth on the Technology Partnership Agreement apply:
(a) Integrator may not distribute or otherwise offer the CEETRON Products on a stand-alone basis;
(b) Integrator may duplicate and use a reasonable number of copies of the CEETRON Products for Integrator’s development and maintenance of the Integrated Products;
(c) Integrator may duplicate and use a reasonable number of copies of the CEETRON Software in the Integrated Products for general marketing activities including testing, demonstrating, maintaining and providing training in the use of the Integrated Products;
(d) Integrator may sublicense and provide maintenance for an unlimited number of licensed copies of the CEETRON Software in the Integrated Products, to Licensees, Distributors and Subdistributors in accordance with the terms of this Agreement;
(e) Integrator may contract with third parties to provide duplication services and/or minor alterations of an embedded CEETRON Product to facilitate its use in foreign countries within the Territory for the sole purpose of providing such copies to Integrator, Distributors, Subdistributors or Licensees, subject to execution of a non- disclosure agreement with such parties with terms no less stringent than those under this Agreement;
(f) Integrator may distribute (and/or host and make available on a SaaS basis) and sublicense a reasonable number of copies of the CEETRON Software in the Integrated Products to potential Licensees for the purpose of evaluation, subject to the terms of Section 3.5; and
(g) Integrator may copy, sublicense, and distribute (and/or host and make available on a SaaS basis if authorized in Exhibit A and/or Exhibit B of the Agreement) CEETRON Software pursuant to the terms hereof as a static, non-linkable version embedded in the Integrated Products only in a binary non-linkable form that is not directly accessible and provided that (i) the resulting Integrated Product cannot be used as a programming tool to develop new graphics applications and (ii) the Integrated Product must enhance the CEETRON Software’s basic capabilities, and otherwise provide “higher” level functions; such that a typical end-user would not purchase the Integrated Product primarily to acquire the CEETRON Software. Notwithstanding the foregoing, a bundled offering that applies an alternative interface technology (e.g., OLE) shall not be considered to provide sufficient value- added functionality if such interface is not combined with other significant application-level functionality, and the Integrated Product does not duplicate the functional or programming interface of the CEETRON Software.
Except as set forth above, Integrator shall not itself or through a third party use, disclose, copy, modify, amend or alter the CEETRON Products or any part thereof or induce or procure or allow any person to do so. Except as expressly permitted herein (if at all), Integrator agrees that it shall not, and shall not permit any third party on its behalf, to:
i) Modify, adapt, alter, translate, or create derivative works from the CEETRON Software or CEETRON Documentation;
ii) Merge the CEETRON Software with other software;
iii) Sublicense, distribute, sell, lease, rent, loan, make available, or otherwise transfer the CEETRON Software or CEETRON Documentation, in whole or in part, to any third party;
iv) Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the CEETRON Software;
v) Make no more than a reasonable number of copies of CEETRON Products for storage in a safe location for archive and backup purposes; or
vi) Otherwise use or copy the CEETRON Software or CEETRON Documentation.
3.2 License Grant (Distributors/Subdistributors). The rights granted by CEETRON to Integrator in Section 3.1(b), (c) and (e) above may be sublicensed by Integrator to Integrator’s Distributors, subject to each such Distributor executing an agreement with Integrator that is substantially equivalent to, and no less protective of CEETRON’s (and its licensors’) interests, than this Agreement, and such rights may be sublicensed by the Distributors to the Subdistributors, subject to the execution by Subdistributors of a license agreement with Distributors that is substantially equivalent to, and no less protective of CEETRON’s (and its licensors’) interests, than this Agreement.
3.3 License Agreement Requirement. Integrator, its Distributors and their Subdistributors shall first establish with each Licensee, whether the Integrated Products are distributed on an on premises basis or made available on a SaaS basis, a legally binding agreement (“License Agreement”) which shall include terms that are no less protective of CEETRON’s (and its licensors’) interests than this Agreement and that include without limitation terms substantially equivalent to the following:
(a) Licensee is granted a nonexclusive license to use the Integrated Product for a period set forth in the License Agreement with a prohibition against transferring or further sublicensing of the Integrated Products to any third party;
(b) Use of the Integrated Product is limited to the Licensee’s internal business purposes, and the Licensee shall have no rights to distribute the Integrated Product to, or use it on behalf of, others or to make the Integrated Product available to any third party, whether as part of any hosted or SaaS solution or time-sharing or service bureau arrangement or otherwise;
(c) Licensee acknowledges that Integrator’s and its licensors’ Intellectual Property Rights are contained in portions of the Integrated Products and that it has an obligation to use reasonable care in maintaining their confidentiality, not using the Integrated Product except as permitted under the License Agreement and not disclosing the Integrated Product to any third party without a written agreement of nondisclosure and use restrictions;
(d) Title to and ownership of the Integrated Product shall not be transferred by virtue of the License Agreement; Licensee is obligated to retain and not remove or obscure any and all copyright, trademark, and proprietary notices and legends contained on the Integrated Products and on all copies thereof;
(e) Licensee is, except as expressly stated in the license and insofar and to the extent permitted by statutory law, prohibited from de-compiling or reverse engineering the Integrated Products and/or creating any derivative works, compilations, or collective works thereof.
(f) Licensee is permitted to make a reasonable number of copies of the Integrated Products solely for normal installation and backup purposes;
(g) Licensee is obligated to comply with the export restrictions and restricted rights regulations set forth in Section 11 and will not export or re-export the Integrated Product without the appropriate United States or foreign government licenses; and
(h) Where Licensee is a U.S. Government Licensee, the Integrated Product is a ‘commercial item’ as that term is defined at 48. C.F.R. 2.101 (OCT 1995), and more specifically is ‘commercial computer software’ and ‘commercial computer software documentation’, as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252-227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III) as applicable, the Integrated Product is provided to Licensee (a) only as a commercial item and (b) any use, duplication, or disclosure thereof is subject to restrictions as set forth in the License Agreement.
Integrated Products provided for trial use by potential Licensees under evaluation agreements shall be subject to all of the provisions applicable to License Agreements set forth in this Agreement and its shall be Integrator’s obligation to assure that such Integrated Products are either destroyed, disabled or returned to Integrator, the Distributor, or the Subdistributor, as applicable, upon expiration of the evaluation period. The term of such evaluations shall not exceed a period longer than 90 days. It shall be the responsibility of Integrator to assure that potential Licensees are advised in writing of any disabling devices that may be included within the Integrated Product.
A shrink-wrap License Agreement together with a registration information card that contains a statement that the Licensee agrees to be bound by the terms of the License Agreement and that Integrator encourages the completion and return of the card will be sufficient to satisfy this requirement.
Integrator further agrees that when the Integrated Products are offered as a hosted service and/or SaaS basis, Integrator shall first (a) establish with each Licensee a form of License Agreement that will be electronically accepted by the Licensee together with information that registers Licensee as a licensee of the Integrated Products and acknowledges Licensee’s acceptance, and (b) ensure that the License Agreement contains terms and conditions that are at least as protective of CEETRON’s intellectual property rights in the CEETRON Software as those agreed to by Integrator in this Agreement and that include without limitation terms substantially equivalent to those set forth above in this Section 3.3. Integrator further represents and warrants during the Term of this Agreement that in no event shall Licensees licensed to use the Integrated Products on a hosted and/or SaaS basis ever receive electronically, physically or otherwise, distributable copies of the Integrated Products and that Licensees will be prohibited from transferring or sublicensing to third parties any rights or licenses to use the Integrated Products under the License Agreement. In addition, all License Agreements shall include all provisions required by the laws of the jurisdictions in which the Licensee is located to the extent not in conflict with the terms of this Agreement. It is Integrator’s responsibility to ensure that any distribution of the Integrated Product to a Licensee is subject to a legally binding License Agreement for the Integrated Product. Integrator shall be financially responsible for all claims and damages to CEETRON caused by its failure to include the required contractual terms in each License Agreement together with attorneys’ fees, costs, and expenses.
3.4 Enforcement. Integrator agrees to diligently enforce the terms of each License Agreement with a Licensee and the terms of the agreements of Integrator, Distributors and Subdistributors related to this Agreement. If CEETRON receives information which reasonably supports the conclusion that a Licensee, Distributor or Subdistributor is in breach of any provision of their respective agreements related to Integrated Products, Integrator agrees to work diligently and in good faith with CEETRON and issue written notices of breach, as appropriate, to enforce and cause Licensees, Distributors or Subdistributors to adhere to their respective agreements. Upon CEETRON’s request, Integrator will provide CEETRON with a copy of all License Agreements and other agreements and documents purporting to grant license and usage rights to the Integrated Products.
3.5 Evaluation Licenses. Integrated Products provided to potential Licensees solely for trial use under an evaluation agreement (“Evaluation License”) are subject to the terms and conditions of this Section 3. Integrator will require that Integrated Products provided under an Evaluation License are either destroyed, disabled or returned to Integrator, its Distributor or its Subdistributor, as applicable, or that access to and use of such Integrated Products is terminated upon expiration of the evaluation period. The term of such Evaluation Licenses shall not exceed ninety (90) days. In the Evaluation Agreement, Integrator will advise each such potential Licensee of any disabling devices included within the Integrated Product.
4. Taxes, Records, Audit and Support
4.1 Taxes and Withholdings. Exclusive of any franchise taxes and taxes based on CEETRON’s net income, any taxes, duties, related penalties, service fees, or levies of any nature imposed under any law of the Territory arising from the licensing of Integrated Products, the licensing of the CEETRON Software, or the provision of services hereunder, will be borne and paid by Integrator, or Integrator shall reimburse CEETRON if CEETRON is required to make payment thereof. All charges payable to CEETRON hereunder are exclusive of sales tax, use tax, value added tax, import duties, and other taxes and duties (however designated or levied), which will also be paid by Integrator. If, after a determination by foreign tax authorities, any taxes are required to be withheld on payments by Integrator to CEETRON, Integrator may deduct such taxes from the amount owed CEETRON and pay them to the appropriate taxing authority; provided, however, that Integrator shall promptly secure and deliver to CEETRON an official receipt for all such taxes withheld or other documents deemed by CEETRON to be necessary to enable CEETRON to claim a US foreign tax credit. Integrator will ensure that any taxes withheld are minimized to the extent possible under applicable law.
4.2 Records and Audit. Integrator shall keep, maintain and preserve for at least five (5) years after the applicable transactions, full and accurate accounts and records of all use and grants of licenses to the Integrated Products, examination of which would enable CEETRON to verity statements issued by Integrator and to confirm Integrator’s compliance with the terms of this Agreement. Upon reasonable request and during business hours, CEETRON, or its representative(s), may perform an audit of such records not more than once each year. Integrator shall provide to the auditor(s) such supplementary information and explanation reasonably necessary to explain fully the information contained in Integrator’s books, records, and accounts. The cost of the audits shall be paid by CEETRON unless the audits findings indicate errors in Integrator’s records which have resulted in underpayment of fees due to CEETRON of five percent (5%) or more for the period being audited, in which case Integrator shall pay all third party fees and costs associated with the audit and the amount underpaid.
4.3 Support. CEETRON Software support will be provided as specified on Exhibit B of the Technology Partnership Agreement.
5. Proprietary rights
5.1 Ownership. CEETRON and its licensors, as applicable, shall retain all right, title and interest in and to the CEETRON Products, and any other CEETRON proprietary materials in Integrator’s possession as a result of this Agreement and any derivatives thereof (collectively the “CEETRON Materials”). Integrator acknowledges and agrees that CEETRON, or its licensors, holds the Intellectual Property Rights to the CEETRON Materials and, except as expressly provided herein, Integrator is not granted any other license to the Intellectual Property Rights in the CEETRON Materials. Integrator agrees to notify CEETRON promptly in writing upon its discovery of any unauthorized use or infringement of the CEETRON Materials. Integrator shall retain all right, title and interest in and to the Integrator Products and Integrator Materials, excluding the CEETRON Materials, and CEETRON agrees that Integrator holds the Intellectual Property Rights in the Integrated Products and Integrator Materials.
5.2 Markings. Integrator and its Distributors and Subdistributors shall state in their advertising, marketing materials, and packaging related to the Integrated Products, that the Integrated Products contain, or are provided with, the CEETRON Products. When a CEETRON Product is referenced, Integrator agrees to use the appropriate trademark, product descriptor and trademark symbol (either “” or “” in a superscript), and clearly indicate ownership of the CEETRON Trademarks by CEETRON (or its licensor, as the case may be) whenever the CEETRON Product name is first mentioned in any advertisement, brochure or in any other manner in connection with that CEETRON Product and any Integrated Products. Integrator shall, upon request, provide CEETRON with samples of all of such promotional, packaging and other written materials that use the CEETRON Product(s) name(s).
5.3 Proprietary Notices. In duplicating any portion of a CEETRON Product, Integrator shall reproduce all proprietary rights notices contained on or in the CEETRON Product. Integrator shall not add to, remove, obstruct, conceal, change or deface any Trademark, logo or other commercial designation of CEETRON and of its applicable licensors on or in the CEETRON Product.
5.4 Sales Notices. Integrator shall notify CEETRON (email is acceptable) before, or promptly after, the first commercial release of each type of Integrated Product (each, a “First Commercial Sale”). After such first release, and if requested by CEETRON, Integrator agrees to discuss in good faith CEETRON’s use of certain mutually agreed upon data sets and images in connection with the parties’ respective marketing activities. A “release” as used in this Section means the grant to a Licensee of a License Agreement with respect to an Integrated Product or the acceptance of a License Agreement with respect to an Integrated Product by a Licensee in exchange for money or other consideration.
5.5 Trademark Licenses.
(a) CEETRON hereby grants to Integrator a nonexclusive, non-transferable (except as provided in Section 12.1) license, for the Term of this Agreement, to use the CEETRON Trademarks within the Territory, in connection with the licensing, marketing and distribution of the Integrated Products, including use in marketing collateral and website marketing, subject to the restrictions on use contained herein and CEETRON’s trademark usage guidelines to the extent provided to Integrator from time to time. Under this license, Integrator may grant Distributors and Subdistributors a nonexclusive, royalty-free license to so use the CEETRON Trademarks within the Territory Integrator will provide and will cause its Distributors and Subdistributors to provide samples of each such use to CEETRON upon request, and promptly cease any use that CEETRON identifies as not conforming to its trademark usage policies. All such usage shall inure to the benefit of CEETRON.
(b) Integrator hereby grants to CEETRON a nonexclusive, non-transferable (except as provided in Section 12.1), royalty-free license, for the Term of this Agreement, to use the Integrator Trademarks in connection with CEETRON’s marketing collateral and website marketing, subject to Integrator’s trademark usage guidelines to the extent provided to CEETRON from time to time. CEETRON will provide samples of each such use to Integrator upon request, and promptly cease any use that Integrator identifies as not conforming to its trademark usage policies.
“Confidential Information” means the CEETRON Products, the Integrator Products, the source code to the CEETRON Software, CEETRON trade secrets, and any other information, software or technical data provided by CEETRON or Integrator which is identified as Confidential Information or should reasonably be known to be confidential given the nature of the information and circumstances of disclosure. Without limiting the generality of the foregoing, Integrator acknowledges that the CEETRON Products constitute and contain valuable trade secrets and Confidential Information of CEETRON and its licensors. Integrator will at all times recognize and act consistent with the right to and ownership of CEETRON and its licensors of all copyright, inventions or trade secrets embodied in the CEETRON Products and those portions of the CEETRON Products contained within any Integrated Products regardless of whether patents have been issued thereon, and will not in any way act, or fail to act in any manner, to intentionally or negligently harm, or inconsistently, with the Intellectual Property Rights CEETRON and its licensors have in the CEETRON Products. Each party hereby further agrees
(a) to hold Confidential Information in strict confidence and not to use, make it available or disclose it to any third party except as is necessary to perform that party’s obligations or exercise that party’s rights under this Agreement;
(b) to impose confidentiality restrictions upon the parties to whom any Confidential Information is disclosed that are not less restrictive than those set forth in this Agreement;
(c) to take at least the same precautions to protect the Confidential Information as it takes for its own confidential and proprietary information of like importance, but in no event less than reasonable precautions; and
(d) to refrain from using the Confidential Information for any purpose other than the purposes for which that Confidential Information was disclosed as set forth in clause (a) above.
Additionally, the terms and conditions, but not the existence, of this Agreement shall be treated as Confidential Information of the other party. Notwithstanding the foregoing, nothing in this Agreement will prevent the party receiving Confidential Information (the “Receiving Party”) from using or disclosing information that is
(e) already known by it (other than from the party disclosing Confidential Information (the “Disclosing Party”)) without an obligation of confidentiality;
(f) publicly known or becomes publicly known through no unauthorized act of the Receiving Party;
(g) rightfully received from a third party;
(h) independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or
(i) approved in writing by and signed by an authorized signatory of the Disclosing Party for disclosure.
Confidential Information may be disclosed pursuant to a requirement of a governmental agency or law (including public company reporting requirements) so long as the Receiving Party provides the Disclosing Party with written notice of such requirement before any such disclosure (to the extent permitted by law), so as to afford the Disclosing Party an opportunity to intervene and prevent or limit such disclosure.
7. Warranties and disclaimers
7.1 Performance Warranty. CEETRON warrants that for thirty (30) days after initial delivery of the CEETRON Software to Integrator, the CEETRON Software will substantially conform to the most recent CEETRON Documentation in all material respects. This warranty does not apply to any modifications to the CEETRON Software not made by or on behalf of CEETRON. In the event of a breach of this warranty, provided Integrator notified CEETRON of such breach during the applicable thirty (30) day warranty period, as CEETRON’s sole liability and Integrator’s exclusive remedies for any such breach, CEETRON shall repair or replace the CEETRON Software with conforming CEETRON Software within a commercially reasonable period of time following notification of the breach, consistent with its Support obligations set forth in Section 4.2, or, if neither of the foregoing alternatives is reasonably available to CEETRON, CEETRON shall refund to Integrator any applicable prepaid Recurring Fee, prorated as applicable, provided Integrator has returned, or at CEETRON’s election destroyed, the non-conforming CEETRON Software.
7.2 Open Source Warranty. CEETRON warrants that no open source or third party licenses for third party components embedded within the CEETRON Software and delivered hereunder will be “viral licenses.” For purposes of this clause, a “viral license” restricts derivative works or linking of other files unless the derivative works or additional linked files are also licensed identically as the original (i.e., requiring Integrator to license its Integrated Product, any hosted offering of the Integrated Product, Integrators Product, or any components thereof as open source). For the avoidance of doubt, this warranty is continuing in nature, and CEETRON shall promptly notify Integrator in the event that CEETRON obtains information that any undisclosed open source component may be contained within any CEETRON Software.
7.3 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CEETRON, ON BEHALF OF ITSELF AND ITS LICENSORS, DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING THOSE OF MERCHANTABILITY, NONINFRINGEMENT, AND/OR FITNESS FOR A PARTICULAR PURPOSE. CEETRON MAKES NO WARRANTY THAT THE CEETRON SOFTWARE WILL OPERATE PROPERLY AS EMBEDDED IN THE INTEGRATED PRODUCTS OR ON ANY LICENSEE SYSTEM(S), THAT ANY OF THE CEETRON PRODUCTS WILL MEET THE SPECIFIC NEEDS OF INTEGRATOR, ITS DISTRIBUTORS, SUBDISTRIBUTORS, OR LICENSEES, THAT SPECIFIC RESULTS WILL BE ACHIEVED WITH SUCH CEETRON PRODUCT, OR THAT THE OPERATION OF THE CEETRON SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
7.4 Other Limitations. Integrator shall not and shall cause Distributors and Subdistributors to not make any representations, warranties or guarantees to Licensees concerning the CEETRON Software that are inconsistent with or in addition to those made in this Agreement.
8.1 CEETRON Indemnity. CEETRON shall defend, indemnify and hold Integrator harmless from any actions or claims brought against Integrator to the extent based on any claim by a third party that a CEETRON Product itself infringes any Intellectual Property Right of such third party. If the CEETRON Product is finally adjudged to so infringe, CEETRON shall, at CEETRON’s option:
(a) procure for the Integrator the right to continue using the CEETRON Product as a component of the Integrated Product;
(b) modify or replace the CEETRON Product so there is no infringement; or
(c) terminate this Agreement, accept return of the CEETRON Product and refund a pro rata portion of the pre-paid Recurring Fee based on the balance of the current quarter or year, as applicable, remaining at the time of termination.
CEETRON shall not be liable under this Section if the CEETRON Product (alone or as part of an Integrated Product) has been modified other than by CEETRON and the infringement would not have occurred but for such modification or if the infringement would not have occurred but for the use of the CEETRON Product with other software or other technology. Notwithstanding the foregoing, CEETRON will have no obligation under this Section or otherwise with respect to any infringement claim based upon and to the extent of:
(d) any unauthorized use, reproduction, or distribution of the CEETRON Product by Integrator, Distributors, Subdistributors, or the agents of any of them,
(e) any use of the CEETRON Product in combination with other products, equipment, software, or data not supplied by CEETRON or contemplated by this Agreement, to the extent such alleged infringement would have been avoided but for the combination with such other products, equipment, software or data and arises out of the functionality of such other products, equipment, software, or data,
(f) any use, reproduction, or distribution of any release of the CEETRON Product other than the most current release made available to Integrator,
(g) any modification of the CEETRON Product by any person other than CEETRON, or
(hcompliance with the specifications, designs or requirements of Integrator or its authorized agents or contractors or of Distributors, Subdistributors, Licensees, or other customers.
The foregoing sets forth CEETRON’s entire liability and Integrator’s sole remedy with respect to any claims of infringement.
8.2 Integrator Indemnity. Integrator shall defend, indemnify and hold CEETRON harmless from any actions or claims brought against CEETRON to the extent based on:
(a) any claim by a third party that the Integrated Products infringe any Intellectual Property Right of such third party if such claim would have not occurred with the exclusive use of the applicable CEETRON Product or use of the applicable CEETRON Product with other technology;
(b) any computer software virus introduced by the Integrator;
(c) the results obtained or decisions made by Licensees of the Integrated Products;
(d) any breach of the representations or warranties made by Integrator or its Distributors and Subdistributors to Licensees in regard to the Integrated Products;
(e) the breach of any of the provisions of this Agreement by Integrator or its Distributors or Subdistributors; and
(f) the negligent act or omission or breach of Integrator or its Distributors or Subdistributors of any obligations under this Agreement.
8.3 Indemnity Procedure. Each party’s indemnification obligations set forth in this Section 8 are conditional on the indemnified party:
(a) notifying the indemnifying party promptly in writing of such action, however, the failure to do so will not relieve the indemnifying party of its indemnification obligations hereunder, except to the extent the indemnifying party has been materially prejudiced thereby,
(b) giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and
(c) cooperating and, at the indemnifying party’s request and expense, assisting in such defense and settlement.
9. Limitation of liability
EXCEPT FOR THE INDEMNITY GIVEN BY CEETRON IN SECTION 8.1 ABOVE, AND EXCEPT TO THE EXTENT SUCH DAMAGES ARE CAUSED BY THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF CEETRON, IN NO EVENT WILL CEETRON OR ITS LICENSORS AND THEIR RESPECTIVE OFFICERS, MANAGERS, AGENTS OR EMPLOYEES BE LIABLE TO INTEGRATOR, DISTRIBUTORS, SUBDISTRIBUTORS, OR LICENSEES UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR INABILITY TO USE THE CEETRON PRODUCTS, REGARDLESS OF THE FORM OF ACTION, FOR ANY LOST PROFITS, LOSS OF BUSINESS, INCOME OR SAVINGS OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR CONSEQUENCES OF SUCH EVENT AND WHETHER OR NOT FORESEEABLE, REGARDLESS OF HOW CHARACTERIZED, OR ADMINISTRATIVE LOSS, LOSS OF DATA, LOSS OF COMMERCIAL REPUTATION OR OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGE OR LOSS, EVEN IF CEETRON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM AGAINST INTEGRATOR OR ITS DISTRIBUTORS OR SUBDISTRIBUTORS BY ANY THIRD PARTY. EXCEPT FOR THE INDEMNITY GIVEN BY CEETRON IN SECTION 8.1 ABOVE AND ANY BREACH BY CEETRON OF ITS OBLIGATIONS UNDER SECTION 6 ABOVE, AND EXCEPT TO THE EXTENT SUCH CLAIMS HAVE ARISEN FROM THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF CEETRON, THE AGGREGATE LIABILITY OF CEETRON WITH RESPECT TO ALL CLAIMS ARISING UNDER, IN CONNECTION WITH, OR IN ANY WAY RELATING TO THIS AGREEMENT AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT OR IN TORT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SHALL NOT EXCEED THE AMOUNT RECEIVED BY CEETRON FROM INTEGRATOR DURING THE PREVIOUS 6 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
10. Term and termination
10.1 Initial Term and Renewals. Unless terminated in accordance with the provisions of this Agreement, the term of this Agreement shall commence on the Effective Date and continue for a period of three (3) years (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew for terms of one (1) year each, upon each anniversary of the Effective Date, unless either party informs the other, in writing, no fewer than ninety (90) days prior to the end of the Initial Term or the then current renewal term. The Initial Term and all such renewal terms are collectively referred to herein as the “Term”.
10.2 Termination. Integrator may terminate this Agreement at any time after the Initial Term upon thirty (30) days prior written notice to CEETRON. CEETRON may also terminate this Agreement and/or any of the licenses granted hereunder, upon written notice to Integrator if any of the following events occur:
(a) Integrator is in default in the payment of any amounts for a period of thirty (30) days after written notice thereof;
(b) Integrator attempts to assign this Agreement, or any portion thereof, without CEETRON’s prior written consent (except in accordance with Section 12.1 below);
(c) Integrator discontinues active marketing and/or commercial distribution of Integrated Products for over a one year period;
(d) Integrator fails to comply with any material provisions of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof, or
(e) Integrator becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency laws, or has liquidated all or a substantial portion of its assets, voluntarily or otherwise.
Termination of this Agreement shall not obligate CEETRON to return or refrain from collecting any part of any fees or other amounts paid or then owed by Integrator.
10.3 Effect of Termination. Upon the expiration or termination of this Agreement, Integrator shall comply with the following:
(a) Integrator, with written notice to CEETRON, may elect to continue to exercise the licenses granted herein during the Sunset Period (as defined below) with respect to any Integrated Product with which a CEETRON Product is bundled/integrated as of the termination or expiration date of this Agreement, excluding any termination pursuant to Section 10.2 above, but only if this Agreement has not terminated due to its breach by Integrator. The foregoing rights are subject to continued payment of the applicable Recurring Fee and Revenue Sharing Fee payments. For purposes of this Agreement, “Sunset Period” means the period that commences on the date of termination or expiration of this Agreement and continues with respect to each Integrated Product for sixteen (16) months thereafter. In the event of a termination pursuant to Section 10.2, Integrator will use its best efforts to remove the CEETRON Software as soon as reasonably practicable but in no event more than six (6) months after the date of termination.
(b) Integrator shall take all actions and execute all documents and agreements reasonably requested by CEETRON to effect the termination of this Agreement and the termination of the appointments hereunder.
(c) Integrator shall pay all Recurring Fee and Revenue Sharing Fee payments due CEETRON up to the effective date of termination or expiration and shall continue to pay all sums which accrue to CEETRON after termination or expiration during the Sunset Period (if any).
(d) Integrator shall continue to provide Revenue Sharing Fee Reports to CEETRON, pursuant to the Technology Partnership Agreement, if applicable, until all transactions under this Agreement have been completed.
(e) Commencing at the beginning of the Sunset Period Integrator shall immediately cease to offer and provide new releases of the Integrated Products and to use any CEETRON Trademarks in connection with new releases of the Integrated Products. At termination of this Agreement, or termination of the Sunset Period (if applicable), Integrator shall remove and permanently delete all copies of the CEETRON Products and materials containing or bearing the CEETRON Trademarks from all Integrator systems and cease all use thereof.
(f) Except in the case of termination of this Agreement for breach by Integrator or termination pursuant to Section 10.2, Integrator may continue to provide Integrated Products maintenance service to its Licensees using any CEETRON Product during the Sunset Period only.
(g) Except as provided in this Section 10.3, Integrator shall immediately cease to use and sublicense all CEETRON Products.
(h) Integrator shall cause its Distributors and Subdistributors to comply with the provisions of this Section.
(i) Immediately after complying with the terms of this Section 10.3, Integrator shall deliver to CEETRON sworn written confirmation that Integrator and its Distributors and Subdistributors have complied with such requirements.
(j) License Agreements in force with Licensees on the effective date of termination or expiration shall continue in full force and effect.
11. Compliance with law
Integrator shall not directly or indirectly export (or re-export) the Integrated Products or any derivatives thereof or permit transshipment of same,
(a) outside the Territory,
(b) into (or to a national or resident of) any country subject to U.S. economic sanctions or other trade controls,
(c) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons, List of Specially Designated Terrorists or List of Specially Designated Narcotics Traffickers or the U.S. Commerce Department’s Table of Deny Orders, Denied Persons (or Parties) List, Unverified Parties List, Entities List, or the U.S. State Department’s list of Debarred Parties, or
(d) to any country or destination for which the U.S. government or a U.S. government agency requires an export license or other approval for export without first having obtained such license or other approval.
Integrator, its Distributors and their Subdistributors shall, at their own expense, perform under this Agreement (and any related agreements) in compliance with all applicable laws and obtain and arrange for all governmental approvals, consents, license authorizations, declarations, filings, and registrations as are required by applicable law or advisable in connection with their respective activities related to their performance of their obligations under this Agreement. Without limiting the generality of the foregoing, Integrator further acknowledges that Integrator is familiar with and shall abide by and comply with the terms and provisions of all applicable anti-bribery, anti-corruption, and similar laws, whether foreign or domestic, and that CEETRON may audit the books and records of Integrator to assure itself of Integrator’s compliance therewith.
12. General provisions
12.1 Assignment. Neither party may assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, either party may assign this Agreement to an affiliate, a successor in connection with a merger, acquisition, consolidation, divestiture, spin off, change of control, or similar such transaction, or to the purchaser in connection with the sale of all or substantially all of CEETRON’s assets related to this Agreement. This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective successors and permitted assigns.
12.2 Relationship of the Parties. Notwithstanding the title of the Agreement (the “Technology Partnership Agreement”) into which these Terms and Conditions are incorporated, the parties acknowledge and agree that no relationship of employment or partnership, or relationship other than that of independent contractors is created by this Agreement. Each party is an independent contractor and in no way a representative or agent of the other party. Integrator has no authority to assume or create any obligation on CEETRON’s behalf, expressed or implied, and CEETRON has no authority to assume or create any obligation on Integrator’s behalf, expressed or implied. Each party’s obligations and liability are as indicated in this Agreement.
12.3 Limitation of Actions. Except for an action brought for breach of a third party’s Intellectual Property Rights, no action, regardless of the form, arising under this Agreement may be brought by Integrator more than two (2) years after either (i) the cause of the action has arisen, or (ii) Integrator becomes aware of the cause of action, whichever is later.
12.4 Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
12.5 Notice. Any notice under this Agreement must be in writing to be valid and will be deemed to have been duly given if delivered personally, delivered by a nationally recognized courier service, or mailed first-class, registered or certified mail, postage prepaid to the address of the party being noticed set forth on the Technology Partnership Agreement or to such address as such party designates hereafter in writing pursuant to this Section, and if to CEETRON with a copy to 1567 SW Chandler Ave. Suite 100, Bend, OR 97702, Attention: Finance. All notices will be effective only upon receipt.
12.6 Survival of Obligations. Sections 1, 5.1 and 6 through 12 will survive any termination or expiration of this Agreement for any reason, with Sections 3, 4, and 5.2 through 5.5 to survive for the applicable time periods contemplated by Section 10.3 in the event a Sunset Period applies.
12.7 Governing Law; Venue. This Agreement shall be construed in accordance with and its performance governed by the internal laws of Norway, excluding its laws of conflict of law. Disputes that may arise in connection with this Agreement or is a result thereof shall be settled by private negotiations between the parties. If such agreement cannot be obtained within a reasonable time period, then the parties agree that the exclusive jurisdiction of any actions arising out of this Agreement will be in the Sør-Trøndelag District Court, located in Trondheim, Norway. This Agreement shall not be governed by statutes on the international sale of goods, including the United Nations Convention on Contracts for the International Sale of Goods.
12.8 Waiver. No consent by either party to, or waiver of, a breach of this Agreement by the other party, whether express or implied, shall constitute a consent to, waiver of, or excuse for any other different or subsequent breach by the other party.
12.9 Injunctive Relief; Remedies. The parties agree that violation in any respect of Sections 3, 5 or 6 would cause the non-breaching party irreparable injury for which it would have no adequate remedy at law and that such party will be entitled to seek injunctive relief, including preliminary and other interim relief, against any such violation, in addition to its other remedies. Where remedies are provided against CEETRON in this Agreement, such remedies are exclusive and in lieu of any and all other remedies at law or in equity.
12.10 Government Licensing. Each CEETRON Product is a “commercial item,” as that term is defined at 48 C.F.R. 2.101, and more specifically “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Integrated Products that Integrator, its Distributors or Subdistributors distribute to or on behalf of the United States government, its agencies and/or instrumentalities (the “Government”), are, and shall be identified as, each a “commercial item”, and more specifically “commercial computer software” and “commercial computer software documentation,” and any use, duplication, or disclosure of the Integrated Products for, on behalf of or by the Government is subject to restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c) (Feb 2014), FAR 12.212(a) (1995), FAR 52.227- 19, or FAR 52.227-14 (ALT III), as applicable.
12.11 Interpretation. This Agreement sets forth the entire agreement of the parties with respect to its subject matter, merging all prior and contemporaneous agreements, understandings, proposals, and arrangements, oral or written, with respect thereto. The English version of this Agreement is the only authentic text and English shall be the governing language of this Agreement. All notices and other communication shall be in the English Language. No prior or subsequent purchase order or other ordering document shall serve to amend this Agreement. All amendments to this Agreement shall be in writing and signed by the parties.