Tweak Software License Agreement Standard Terms and Conditions
This Software License Agreement (together with all exhibits and attachments hereto, the "Agreement") is entered into as of this day (the "Effective Date") by and between Tweak Software, Inc. ("Tweak"), a Delaware corporation, having offices at 1728 Ocean Avenue, Suite #210, San Francisco, CA 94112, and you, the person or entity who is being licensed the Software and Documentation (“Licensee”).
1. DEFINITIONS
The following capitalized terms shall have the meanings provided below:
"Content" means any Licensee or third party information, data, text, software, sound, photographs, images, graphics or other material which the Licensee wishes to display or distribute using the Software.
"Documentation" means any written help files and instruction manuals regarding the use of the Software which Tweak makes generally available to its customers.
"End User" means a person or entity that is an employee, authorized agent, consultant, or independent contractor of Licensee and is able to use the Software for Licensee’s own internal use and not for further resale or distribution.
"Intellectual Property Rights" means any patent rights, copyrights, trade secrets, trademarks, service marks, know-how and any other similar rights or intangible assets recognized under any laws or international conventions and in any country or jurisdiction in the world, and all present and future registrations, applications, disclosures, renewals, extensions, continuations or reissues of the foregoing.
"Software" means Tweak's proprietary software, RV, RVIO, RVLS, and tlm_server, in machine executable, object code format only, which is licensed by Tweak to Licensee and includes Documentation. From time to time, the parties may add Software by executing an addendum to this Agreement.
2. LICENSE
2.1 LICENSE GRANT. Subject to the terms and conditions of this Agreement, Tweak hereby grants to Licensee a limited, non-exclusive and non-transferable license to the Software during the Term:
2.1.1 in object-code form only,
2.1.2 on a single computer owned, leased, or otherwise controlled by Licensee,
2.1.3 solely for the purpose of processing Licensee's internal data.
2.1.4 All rights not expressly granted hereunder are reserved by Tweak; this license does not authorize any use other than that which is expressly set out herein.
2.2 RESTRICTIONS. Without Tweak's prior written consent, Licensee shall not:
2.2.1 copy (except 1 copy for back-up or archival purposes) or modify the Software;
2.2.2 write or develop any derivatives of the Software or any other software program based upon the Software or any Confidential Information (as defined in Section 8);
2.2.3 remove, alter, cover or obliterate any copyright or other proprietary rights notices from the Software or the Documentation;
2.2.4 allow access to the Software by any third party other than Licensee's employees and authorized agents, who may only access such Software at Licensee’s office locations;
2.2.5 use the Software to provide processing services to third parties, commercial timesharing, rental or sharing arrangements, or otherwise use the Software on a 'service bureau' basis;
2.2.6 provide, disclose, divulge or make available to, or permit use of the Software by any third party other than End Users;
2.2.7 decompile, disassemble or reverse engineer the source code of the Software, or permit a third party to do the same; or
2.2.8 sublicense to any third party (including without limitation any subsidiaries, parents or affiliates) in part or in whole any of the Software.
2.3 DELIVERY. Tweak shall issue to Licensee, within a reasonable time after the Effective date, one machine-readable copy of the Software for use as authorized herein and for the number of End Users as paid for by Licensee.
3. OBLIGATIONS
3.1 LICENSEE OBLIGATIONS. Throughout the Term, Licensee shall use good faith efforts to:
3.1.1 promptly notify Tweak of any suspected infringement of Tweak's Intellectual Property Rights or of any unauthorized access to the Software of which it is aware and Licensee shall give Tweak reasonable assistance in detecting such infringement or access and preventing further infringement or access; and
3.1.2 ensure that all Content displayed using the Software is distributed in accordance with all applicable laws and regulations. Licensee shall be solely responsible for all Content, products and services displayed, offered, distributed, used, or sold while using the Software and all liabilities related thereto or resulting therefrom.
4. PRICING AND PAYMENT
4.1 PRICING. Licensee shall pay to Tweak the fees set forth on the Tweak Software web site.
4.2 PAYMENT. Upon payment by Licensee to Tweak of all Fees and other charges, Tweak shall deliver the Software as set forth in section 2.3. All Fees and other charges are payable in U.S. dollars. All Fees described herein are payable in full and are exclusive of any taxes, including without limitation any excise, sales, use, value added (VAT), withholding and similar taxes. Licensee shall be liable and shall pay all applicable taxes associated with the Software and services. When Tweak has the legal obligation to collect such taxes, the appropriate amount shall be added to Licensee's invoice and paid by Licensee unless Licensee provides Tweak with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. OWNERSHIP
5.1 The Software and all Intellectual Property Rights thereto and therein are and shall be owned by Tweak and are protected by United States and international copyright laws and treaty provisions. Tweak may at any time and at its sole election replace, modify, alter, improve, enhance, or change all or any part of the Software. The license of the Software granted herein is not a sale and does not transfer to Licensee any title or ownership interest in or to the Software or any Intellectual Property Rights related to the Software. Except for the rights expressly granted herein, Tweak retains all of its right, title and interest in and to the Software and to any modifications, improvements, customizations, feedback, reports, designs, inventions, specifications or other materials developed by Tweak for Licensee pursuant to this Agreement and all Intellectual Property Rights therein (collectively, "Developments"). Licensee hereby assigns to Tweak any ownership rights that it may otherwise have in the Developments and agrees to execute such documents and perform such acts as are reasonably necessary to perfect such assignment, at Tweak’s sole cost and expense. Licensee agrees that it will not claim or assert any right or title to any material described herein nor shall Licensee attempt to transfer any such right or title to any third party.
6. INDEMNIFICATION
LICENSEE INDEMNITY. Licensee shall indemnify and hold Tweak and its affiliated, related or subsidiary companies and its and/or their employees, directors, officers, agents, shareholders, successors, assigns or licensees harmless from and against any costs, damages, losses, liabilities and expenses (including without limitation attorneys' fees and expenses) arising out of any third party claim, action, or allegation brought against Tweak and its affiliated, related or subsidiary companies and its and/or their employees, directors, officers, agents, shareholders, successors, assigns or licensees (i) related to Licensee's (and its employees, agents or contractors) use of the Software or (ii) in connection with or arising from the production, marketing, distribution, or exhibition of a motion picture, commercial, or video game. Licensee shall, at its expense, defend or settle any such claim and shall pay any final judgments awarded or settlements entered into, provided Tweak has notified Licensee of the claim promptly, provided reasonable assistance to Licensee and Licensee has full authority to direct the defense and settlement.
7. CONFIDENTIALITY
7.1 DEFINITION. "Confidential Information" means any information disclosed by Tweak which, (i) if in written, graphic, machine-readable or other tangible form, is understood by the parties to be confidential or is marked as "Confidential" or "Proprietary," (ii) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential; or (iii) is specifically deemed to be confidential by the terms of this Agreement. All Software and Documentation are deemed Confidential Information under this Agreement.
7.2 CONFIDENTIALITY. During the Term of this Agreement and for 5 years thereafter, Licensee will treat as confidential all Confidential Information of Tweak and will not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement herein, and will not disclose such Confidential Information to any third party. Without limiting the foregoing, Licensee will use at least the same degree of care (and not less than a reasonable degree of care) it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of Tweak. Licensee will promptly notify Tweak of any actual or suspected misuse or unauthorized disclosure of Tweak’s Confidential Information.
7.3 CONFIDENTIALITY OF AGREEMENT. Each party may disclose the existence of this Agreement, but agrees that the terms and conditions of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms and conditions of this Agreement to those with a need to know, including without limitation accountants, bankers, investors, attorneys and others under a duty of confidentiality in connection with the information disclosed.
7.4 RETURN OF CONFIDENTIAL INFORMATION. In the event of termination or expiration of this Agreement, all Confidential Information and materials provided or delivered to Licensee under this Agreement, and all copies or portions of copies and any summaries thereof, will be promptly returned to Tweak or, if requested by Tweak in writing, destroyed. Upon request within thirty (30) days after the termination of this Agreement, Licensee shall certify in writing that all such materials have been either returned to Tweak or destroyed per Tweak's request.
8. REPRESENTATIONS AND WARRANTIES
8.1 LIMITED WARRANTY. Tweak warrants that the Software will perform substantially in accordance with the Documentation for a period of 90 days from the date of delivery to Licensee. If during such period the Software does not substantially perform in accordance with the Documentation, Tweak (in its sole discretion) shall correct the Software, or if correction of the Software is reasonably not possible, replace such Software free of charge with different Software, or return the License fee. The foregoing are Licensee's sole and exclusive remedies and Tweak's sole liability for breach of warranty.
8.2 LIMITATIONS. The warranties described in Section 8.1 shall apply only if:
8.2.1 the Software has been properly installed and used at all times in accordance with this Agreement, the Documentation and all applicable end user licenses and
8.2.2 no modification, reconfiguration, alteration or addition has been made to the Software by anyone other than Tweak or Tweak's authorized representative, or has been done by Licensee with Tweak's prior written consent and in accordance with the terms, conditions and instructions of such written consent.
8.3 WARRANTY DISCLAIMER. EXCEPT AS SET FORTH IN THIS AGREEMENT, TWEAK MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING THE SOFTWARE, DOCUMENTATION, ANY MATERIALS OR OTHER PRODUCTS OR SERVICES FURNISHED OR PROVIDED TO LICENSEE AND END USERS UNDER THIS AGREEMENT. EXCEPT AS SET FORTH IN THIS AGREEMENT, TWEAK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND OTHER MATERIALS AND PRODUCTS OR SERVICES. TWEAK DOES NOT REPRESENT THAT THE USE OF THE PRODUCTS WILL BE COMPLETELY SECURE, UNINTERRUPTED OR ERROR-FREE.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL TWEAK BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED IN CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE, EVEN IF TWEAK OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
10. TERM AND TERMINATION
10.1 TERM This Agreement shall commence upon the Effective Date and shall continue until terminated under the terms of this Agreement (“Term”).
10.2 TERMINATION FOR CAUSE. Each party may terminate this Agreement on written notice in the event the other commits any material breach of the terms of this Agreement which is not remedied within 30 days of receipt of notice specifying the breach and stating the intention to terminate the Agreement if not remedied.
10.3 TERMINATION BY TWEAK. Tweak may terminate this Agreement immediately upon written notice to Licensee in the event that:
10.3.1 Licensee (i) terminates or suspends its business activities, (ii) makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes or their equivalents under the laws of any applicable jurisdiction, which shall result in immediate termination upon written notice by Tweak; or
10.3.2 Licensee breaches its obligations under Sections 2 or 7; or
10.3.3 Licensee has not paid any outstanding sum after 90 days from the invoice date.
10.4 EFFECT OF TERMINATION. Licensee shall not be relieved of its accrued payment obligations under this Agreement and shall pay all accrued amounts promptly after the effective date of termination. Upon termination of this Agreement, Licensee shall immediately cease using any and all Software. Upon termination of this Agreement, each party shall return or destroy the Confidential Information of the other.
10.5 SURVIVAL. The following Sections shall survive any termination of this Agreement: Sections 1, 4, 5, 6, 7, 8.3, 9, 10.4, 10.5 and 11.
11. MISCELLANEOUS
11.1 ASSIGNMENT. Licensee may not assign or transfer this Agreement or any rights or obligations hereunder to any person or entity. Any assignment or transfer in contravention of the foregoing will be deemed null and void.
11.2 INDEPENDENT CONTRACTORS. The relationship of the parties under this Agreement is that of independent contractors. Neither party will be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other.
11.3 FORCE MAJEURE. Except for the obligation to make payments, neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform under this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the reasonable control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, failures of the Internet, earthquakes, fire and explosions, but the inability to meet financial obligations is expressly excluded.
11.4 ATTORNEY’S FEES. In the event of any litigation between Tweak and Licensee, the parties acknowledge and agree that the prevailing party in the litigation will be entitled to recover attorneys’ fees and expenses from the other party.
11.5 WAIVER. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action. Except as expressly stated in this Agreement, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
11.6 SEVERABILITY. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
11.7 ENTIRE AGREEMENT. This Agreement (including the exhibits and attachments and any addenda hereto signed by both parties) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supercedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties.
11.8 PURCHASE ORDERS. No terms, provisions or conditions of any purchase order, acknowledgment or other business form that Licensee may use or create in connection with the licensing of the Software will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Tweak to object to such terms, provisions or conditions.
11.9 GOVERNING LAW. This Agreement is entered into in the State of California, and this Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of the California state courts in and for San Francisco County, California or, if there is exclusive federal jurisdiction, the United States District Court for the Northern District of California, and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts, and hereby consent thereto and waive any objection to such jurisdiction and venue.
11.10 INJUNCTIVE RELIEF. Any violation of the Confidentiality provisions of this Agreement by one of the parties that would cause irreparable harm to the other party may not be adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available to prevent any actual or threatened violation of such provisions that would cause irreparable harm to the non-violating party.
11.11 NO IMPLIED LICENSES. Nothing contained in this Agreement confers or should be construed as conferring any rights by implication, estoppel or otherwise, under any Intellectual Property Right, other than the rights expressly granted in this Agreement.
11.12 EXPORT CONTROL. Licensee agrees to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, including the United States Export Administration Regulations, and not to export, or allow the export or re-export of any technical data or any Software or other product in violation of any such restrictions, laws or regulations.
11.13 LIMITATION ON CLAIMS. No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought by either party more than one year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.
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