FLAMES® License Agreement
Carefully read this FLAMES® LICENSE AGREEMENT (this “Agreement“) between you (“Licensee” as defined in Definitions, Section 14) and Ternion® Corporation, an Alabama corporation with offices located at 3411 Triana Boulevard, Huntsville, AL 35805 (“Licensor“). Licensor and Licensee may be referred to herein collectively as the “Parties” or individually as a “Party.”
This Agreement is a legal document that explains your rights and obligations related to your use FLAMES(r) (as defined in Section 14). By purchasing a license to, downloading, installing or using FLAMES, you are agreeing to be bound by the terms of this Agreement. If you do not or cannot agree to the terms of this Agreement, then do not purchase a license to, download, install or use FLAMES.
(A) Licensor desires to license FLAMES to Licensee.
(B) Licensee desires to obtain a license to use FLAMES subject to the terms and conditions of this Agreement.
In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1 License grant. Subject to and conditioned on Licensee’s payment of all applicable fees and compliance with all other terms and conditions of this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-sublicensable, and non-transferable (except as provided herein) limited license to use FLAMES only as specified in this Agreement.
1.2 Permitted Uses. For the purposes of this Agreement, to use FLAMES means to
(1) download, install, or copy FLAMES onto the storage media of a computer;
(2) load FLAMES into the memory of a computer;
(3) execute FLAMES programs or plug-ins on a computer;
(4) make non-productive backup copies of FLAMES;
(5) make hard copies of FLAMES printable material;
(6) make electronic and hard copies of images generated by FLAMES;
(7) embed FLAMES in a file by including references to FLAMES include files, functions, or data types;
(8) view or modify FLAMES data files or any file that includes references to FLAMES include files, functions, or data types;
(9) create object code, plug-ins, and executable programs using FLAMES;
(10) execute FLAMES with compatible plug-ins developed by and received from other parties.
- License restrictions. Licensee shall not and shall not permit any other Person to:
(1) use, distribute, or Distribute FLAMES in any manner that is not expressly permitted by this Agreement;
(2) use any portion of FLAMES for which Licensee has not been granted a license;
(3) use FLAMES on any computer to which a license has not been assigned;
(4) allow FLAMES on a given computer to be used by more than one person at a time;
(5) sub-license, sell, rent, or lease FLAMES or include FLAMES in any product that is sold, rented, or leased;
(6) alter, remove, or destroy any copyright, trademark, disclaimer, warranty, rights, or restriction notices or markings from FLAMES;
(7) disassemble, decompile, reverse-engineer, or otherwise attempt to discover the inner workings of FLAMES;
(8) make changes to FLAMES executable programs, object files, or Documentation;
(9) bypass or breach any license management or security algorithm, software, or process used for or contained in FLAMES;
(10) use FLAMES in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law;
(11) use FLAMES in any manner that (a) supports the development or sale of products that compete with FLAMES or any other product developed by Licensor or (b) is to Licensor’s detriment or commercial disadvantage;
(12) use FLAMES in or in connection with: (a) the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications; (b) any safety response systems or other safety-critical applications; or (c) any other use or application in which the use or failure of FLAMES could lead to personal injury or severe physical or property damage; or
(13) use trial versions of FLAMES for any purpose other than a short-term evaluation of FLAMES or to test software developed using the FLAMES Developer.
3.1 Limits on Reproduction. No portion of FLAMES may be modified or reproduced in any manner except as specifically stated in this Agreement.
3.2 Markings. All copies of any portion of FLAMES, including any document, data file, source code file, object code file, or executable file that contains or was generated using any portion of FLAMES, must contain the copyright and restriction notices contained in the original and shall be subject to the terms and conditions of this Agreement. Any executable program that contains or was generated using any portion of FLAMES must prominently display the following:
Based on FLAMES® Copyright © Ternion Corporation. All Rights Reserved.
Use, duplication, and disclosure is governed by the terms and conditions of the FLAMES License Agreement.
4.1 Limitation on Distribution. Licensee may distribute FLAMES and any file that contains any part of FLAMES only to those with licenses to use the distributed parts of FLAMES and who have accepted the terms of this Agreement. The use of all such distributed parts of FLAMES shall be subject to the terms this Agreement. No portion of FLAMES may be distributed in any form to any party except as specifically stated in this Agreement.
4.2 Generated Images. Licensee may distribute electronic and hard copies of images generated using FLAMES provided the image prominently displays the text, “Image generated by FLAMES® from Ternion® Corporation.”
4.3 Generated Data. Licensee may distribute data files generated using FLAMES without restriction if the data file does not contain any data supplied with FLAMES.
4.4 Receiving Distributions. Licensee may not accept any portion of FLAMES from another party for which Licensee does not have the appropriate license. Any portion of FLAMES that Licensee accepts or has accepted from another party shall be subject to the terms of this Agreement.
- Third-Party license agreements
5.1 Incorporation of license agreements. FLAMES utilizes Third-Party Materials under the terms of the associated license agreements. Each of these associated license agreements is incorporated herein by reference. The full text of each license agreement is available on the flamesframework.com website.
5.2 Third-party identification. The Third-Party Materials utilized by FLAMES and the links to the associated license agreements are CIGI Class Library (CCL), libgeotiff library, libpng library, libtiff library, OpenFlight library, OpenSSL library, Qt library, Rijndael Encryption Algorithm library, SHA256 library, and SpookyHash library.
- Fees and payment
6.1 License fees. Licensee shall pay Licensor the license fees set forth in the online store or in invoices received from Licensor in accordance both with the terms of the invoices and the terms of this Section 6.
6.2 Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any national, federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor’s income.
6.3 No deductions or setoffs. All amounts payable to Licensor under this Agreement shall be paid by Licensee to Licensor in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax, as may be required by applicable Law).
6.4 NO REFUNDS. Except to the extent required by Law, all payments and fees under this Agreement are non-refundable under all circumstances, regardless of whether or not this Agreement has been terminated.
8.1 Confidential information. In connection with this Agreement, each Party (the “Disclosing Party“) may disclose or make available Confidential Information to the other Party (the “Receiving Party“). Subject to Section 8.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations-whether or not marked, designated, or otherwise identified as ‘confidential.’ Without limiting the foregoing: (1) FLAMES is the Confidential Information of Licensor; and (2) the terms of this Agreement are the Confidential Information of Licensor (except that, if Licensee entered this Agreement for the purpose of performing its duties under a contract with a government entity, then Licensee may submit to the government entity (a) an itemization of Licensee’s costs under this Agreement solely for the purpose of compliance with Law or of reimbursement; and (b) a copy of the terms of this Agreement solely for the purposes of compliance with Laws or with Section 15.10).
8.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (1) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (2) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (3) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (4) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
8.3 Protection of confidential information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(1) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(2) except as may be permitted under the terms and conditions of Section 8.4, not disclose or permit access to Confidential Information other than to its Representatives who: (a) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (b) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8; and (c) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8;
(3) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
(4) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and use its best efforts to prevent further unauthorized use or disclosure; and
(5) ensure its Representatives’ compliance with-and be responsible and liable for any of its Representatives’ non-compliance with-the terms of this Section 8.
Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 8 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
8.4 Compelled disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will: (1) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.3; and (2) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance, or if-after providing the notice and assistance required under this Section 8.4-the Receiving Party remains required by Law to disclose any Confidential Information, then the Receiving Party: (a) will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose; and, (b) on the Disclosing Party’s request, will use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
- Intellectual property rights
9.1 Intellectual property ownership. Licensee acknowledges and agrees that:
(1) FLAMES is licensed, not sold, to Licensee by Licensor, and Licensee does not have under or in connection with this Agreement any ownership interest either in FLAMES or in any related Intellectual Property Rights;
(2) Licensor and its licensor(s) are the sole and exclusive owners of all right, title, and interest in and to FLAMES-including all Intellectual Property Rights relating thereto-subject only: (a) to the rights of third parties in Third-Party Materials; (b) to the limited license granted to Licensee under this Agreement; and (c) to other limited licenses as Licensor may have granted (or, from time to time, grant) to other licensees in Licensor’s sole discretion; and
(3) Licensee hereby unconditionally and irrevocably assigns to Licensor its entire right, title, and interest in and to any Intellectual Property Rights that Licensee may now or hereafter have in or relating to FLAMES (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.
9.2 Licensee cooperation and notice of infringement. Licensee shall, during the Term:
(1) take all reasonable measures to safeguard FLAMES (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access;
(2) at Licensor’s expense, take all such steps as Licensor may reasonably require to assist Licensor in maintaining the validity of, enforceability of, and Licensor’s ownership of the Intellectual Property Rights in FLAMES;
(3) promptly notify Licensor in writing if Licensee becomes aware of: (a) any actual or suspected infringement, misappropriation, or other violation of Licensor’s Intellectual Property Rights in or relating to FLAMES; or (b) any claim that FLAMES-including any production, use, marketing, sale or other disposition of FLAMES-in whole or in part infringes, misappropriates, or otherwise violates the Intellectual Property Rights or other rights of any Person; and
(4) fully cooperate with and assist Licensor in all reasonable ways in the conduct of any Action by Licensor to prevent or abate any actual or threatened infringement, misappropriation, or violation of Licensor’s rights in-and to attempt to resolve any Actions relating to-FLAMES (including having Licensee’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens, and the like).
9.3 Feedback and Licensee Contributions. If Licensee provides Licensor with any Feedback, then Licensor may use (or not use) the Feedback in Licensor’s sole discretion. If Licensee makes available to Licensor any Licensee Contribution, then Licensee hereby assigns to Licensor all right, title, and interest-including all copyright, patent, and other Intellectual Property Rights-in and to that Licensee Contribution for all current and future methods of exploitation throughout the universe. If any of those rights are not thereby effectively assigned, then Licensee hereby grants to Licensor a non-exclusive, paid-up, irrevocable, transferrable, sublicensable license throughout the universe to reproduce, distribute, Distribute, publicly perform, publicly display, make, use, have made, sell, offer to sell, import, modify, and make derivative works based on-and otherwise exploit by all future and current methods-the Licensee Contribution.
9.4 No implied rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants (by implication, by waiver, by estoppel, or otherwise) to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to any of FLAMES.
- Representations and warranties
10.1 Representations and warranties. Licensee represents, warrants, and covenants to Licensor that:
(1) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(2) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under this Agreement;
(3) the execution of this Agreement by its Representative has been duly authorized by all necessary corporate or organizational action of Licensee; and
(4) this Agreement will constitute the legal, valid, and binding obligation of Licensee and is enforceable against Licensee in accordance with its terms.
10.2 Warranty period. Subject to the limitations and conditions set forth in Section 10.3 and Section 10.4, Licensor warrants to Licensee that, for a period of 30 days following the Initial Delivery Date (the “Warranty Period“), FLAMES will substantially conform in all material respects to the Documentation-if installed, operated, and used both as recommended in the Documentation and in accordance with this Agreement.
10.3 Licensee requirements. The limited warranties set forth in Section 10.2 apply only if Licensee: (1) notifies Licensor in writing of the warranty breach before the expiration of the Warranty Period; (2) has promptly installed all updates to FLAMES that Licensor previously made available to Licensee; and (3) as of the date of notification, is in compliance with all terms and conditions of this Agreement (including the payment of all license fees then due and owing).
10.4 Exceptions. Notwithstanding any provisions to the contrary in this Agreement, the limited warranties set forth in Section 10.2 do not apply to problems arising out of or relating to:
(1) Any portion of FLAMES-or any media on which it is provided-that is modified or damaged by Licensee or its Representatives;
(2) any operation or use of-or other activity relating to-FLAMES other than as specified in the Documentation, including any incorporation in FLAMES of-or combination, operation, or use of FLAMES in or with-any technology (including any software, hardware, firmware, system, or network) or service not specified for Licensee’s use in the Documentation, unless otherwise expressly permitted by Licensor in writing;
(3) Licensee’s or any third party’s negligence, abuse, misapplication, or misuse of FLAMES, including any use of FLAMES other than as specified in the Documentation or as expressly authorized by Licensor in writing;
(4) Licensee’s failure to promptly (and in accordance with industry standards) install all updates to FLAMES that Licensor has previously made available to Licensee;
(5) the operation of, or access to, Licensee’s or a third party’s system or network;
(6) any beta software, software that Licensor makes available for testing or demonstration purposes, temporary software modules, or software for which Licensor does not receive a license fee;
(7) Licensee’s breach of any provision of this Agreement; or
(8) any other circumstances or causes outside of the reasonable control of Licensor (including abnormal physical or electrical stress).
10.5 Remedial efforts. If Licensor breaches, or is alleged to have breached, any of the warranties set forth in Section 10.2, Licensor may, at its sole option and expense, take any of the following steps to remedy such breach:
(1) replace any damaged or defective media on which Licensor supplied FLAMES;
(2) amend, supplement, or replace the Documentation; and/or
(3) repair or replace the defective portions of FLAMES.
The remedies set forth in this Section 10.5 are Licensee’s sole remedies and Licensor’s sole liability under the limited warranty set forth in Section 10.2.
10.6 DISCLAIMER OF WARRANTIES. FLAMES is provided by Licensor: (A) ‘as is’ and ‘as available’; (B) ‘with all faults’; and (C) without warranty of any kind. Licensor hereby disclaims all representations, conditions, and warranties-whether express, implied, statutory, or other. Licensor specifically disclaims: (1) all implied warranties of merchantability, fitness or suitability for any particular purpose (whether or not Licensor has any reason to know of such purpose), title, and non-infringement; and (2) all warranties arising from law, course of dealing, usage, trade practice, or custom or usage in the trade. Without limiting the foregoing, Licensor makes no warranty of any kind that FLAMES-or any Product resulting from the use thereof-will: (a) meet Licensee’s or other person’s requirements; (b) operate properly; (c) operate uninterruptedly or free of bugs, errors, or malware (including viruses); (d) achieve any intended result; (e) be compatible with or work with any software, system, or other service; or (f) be secure, accurate, complete, free of harmful code, or error-free. Further and without limiting the foregoing, Licensor makes no warranty of any kind that any defects in FLAMES or any Product can or will be corrected. All Third-Party Materials are provided ‘as is’; any representation or warranty of or concerning any of them is strictly between Licensee and the third-party owner or distributor of such Third-Party Materials. This Section 10.6 will apply to the maximum extent permitted by applicable Laws.
11.1 Licensor indemnification. Licensor shall indemnify, defend, and hold harmless Licensee from and against any and all Losses incurred by Licensee resulting from any Action by a third party that FLAMES-or any use of FLAMES in accordance with this Agreement-infringes or misappropriates such third party’s Intellectual Property Rights arising under the laws of the United States. This Section 11.1 does not apply to the extent that the alleged infringement arises from:
(1) combination, operation, or use of FLAMES in or with, any technology (including any software, hardware, firmware, system, or network) or service not provided by Licensor;
(2) modification of FLAMES other than: (a) by Licensor in connection with this Agreement; or (b) with Licensor’s express written authorization and in strict accordance with Licensor’s written directions and specifications;
(3) use of any version of FLAMES other than the most current version or failure to timely implement any modification, update, or replacement of FLAMES made available to Licensee by Licensor;
(4) use of FLAMES after Licensor’s notice to Licensee of such activity’s alleged or actual infringement, misappropriation, or other violation of a third party’s rights;
(5) negligence, abuse, misapplication, or misuse of FLAMES by or on behalf of Licensee, Licensee’s Representatives, or a third party;
(6) use of FLAMES by or on behalf of Licensee that is outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to Licensor’s instructions;
(7) events or circumstances outside of Licensor’s commercially reasonable control (including infringements in Third-Party Materials and any third-party hardware, software, or system bugs, defects, or malfunctions); or
(8) Third-party Claims or Losses for which Licensee is obligated to indemnify Licensor pursuant to Section 11.2.
11.2 Licensee indemnification. Licensee shall indemnify, defend, hold harmless, and pay the defense costs of Licensor and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and permitted assigns (each, a “Licensor Indemnitee“) from and against any and all Losses incurred by the Licensor Indemnitee resulting from any Action by a third party:
(1) that any Intellectual Property Rights or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any:
(a) use or combination of FLAMES by or on behalf of Licensee or any of its Representatives with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by Licensor nor authorized by Licensor in this Agreement or otherwise in writing; and
(b) information, materials, or technology directly or indirectly provided by Licensee or directed by Licensee to be installed, combined, integrated, or used with, as part of, or in connection with FLAMES;
(2) relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant, or obligation under this Agreement;
(3) relating to negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Licensee or any of its Representatives with respect to FLAMES or otherwise in connection with this Agreement;
(4) relating to use of FLAMES by or on behalf of Licensee or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement, or in any manner contrary to Licensor’s instructions; or
(5) any federal, state, or foreign civil or criminal actions related to FLAMES or to any Product.
11.3 Indemnification procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 11.1 or Section 11.2. The Party seeking indemnification (the “Indemnitee“) shall cooperate with the other Party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. Licensee shall reimburse Licensor on demand for any defense costs incurred by Licensor and any payments made or Losses suffered by Licensor-whether in a court judgment or settlement-based on any matter covered by this Section 11.
11.4 Mitigation. If FLAMES, or any part of FLAMES, is, or in Licensor’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Licensee’s use of FLAMES is enjoined or threatened to be enjoined, Licensor may, at its option and sole cost and expense:
(1) obtain the right for Licensee to continue to use FLAMES materially as contemplated by this Agreement;
(2) modify FLAMES, in whole or in part, to seek to make FLAMES non-infringing; or
(3) terminate this Agreement, in its entirety or with respect to the affected part or feature of FLAMES, effective immediately on written notice to Licensee, in which event:
(a) Licensee shall cease all use of FLAMES immediately on receipt of Licensee’s notice; and
(b) provided that Licensee fully complies with its post-termination obligations set forth in Section 13.5, Licensor shall promptly refund to Licensee, on a pro rata basis, the share of any license fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination.
11.5 SOLE REMEDY. This Section 11 sets forth Licensee’s sole remedies and Licensor’s sole liability and obligation for any actual, threatened, or alleged claims that FLAMES or any subject matter of this Agreement infringes, misappropriates, or otherwise violates any Intellectual Property Rights of any third party.
- Limitations of liability
12.1 EXCLUSION OF DAMAGES. In no event will Licensor, or any of its licensors, service providers, or suppliers be liable under or in connection with this Agreement or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (1) increased costs, diminution in value or lost business, production, revenues, or profits; (2) business interruption or impairment, or any use of or inability to use FLAMES; (3) loss of goodwill or reputation; (4) use, inability to use, loss, interruption, delay, or recovery of FLAMES or Third-Party Materials; (5) loss, damage, corruption, or recovery of data, or breach of data or system security; (6) failure to identify or to remediate threats or vulnerabilities; (7) cost of replacement goods or services; or (8) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages-in each case regardless of whether such Persons were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
12.2 CAP ON MONETARY LIABILITY. In no event will the aggregate liability of Licensor arising out of or related to this Agreement-whether arising under or related to breach of contract, tort (including negligence), strict liability or any other legal or equitable theory-exceed the lesser of: (1) the total amounts paid and amounts accrued but not yet paid to Licensor under this Agreement in the two-year period preceding the event giving rise to the claim; and (2) fifty thousand dollars ($50,000.00). The foregoing limitations apply even if any remedy fails either of its essential purpose or to provide adequate compensation; provided that, the foregoing limitations apply only to the maximum extent permitted by Law.
- Term and termination
13.1 Initial term. The initial term of this Agreement commences as of the Effective Date and continues in effect until one year from such date (the “Initial Term“) unless: (1) earlier terminated pursuant to any of the Agreement’s express provisions; (2) either Party gives the other Party written notice of non-renewal at least 60 days prior to the expiration of the then-current term; or (3) Licensee breaches the terms of this Agreement, which breach shall terminate this Agreement.
13.2 Renewal term. This Agreement will automatically renew for additional successive one-year terms (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”) unless: (1) earlier terminated pursuant to any of the Agreement’s express provisions; (2) either Party gives the other Party written notice of non-renewal at least 60 days prior to the expiration of the then-current term; or (3) Licensee breaches the terms of this Agreement, which breach shall terminate this agreement.
13.4 Termination. This Agreement may be terminated at any time:
(1) by Licensor, effective on written notice to Licensee, if Licensee fails to pay any amount when due under this Agreement, where such failure continues more than 30 days after Licensor’s delivery of written notice thereof;
(2) by either Party, effective on written notice to the other Party, if the other Party breaches this Agreement and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(3) by Licensor, effective immediately, if Licensee: (a) is dissolved or liquidated or takes any corporate action for such purpose; (b) becomes insolvent or is generally unable to pay its debts as they become due; (c) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
13.5 Effect of termination or expiration. On the expiration or earlier termination of this Agreement:
(1) all rights, licenses and authorizations granted to licensee hereunder will immediately terminate and Licensee will: (a) immediately cease all use of and other activities with respect to FLAMES; (b) within 30 days deliver to Licensor, or at Licensor’s written request destroy, and permanently erase from all devices and systems Licensee directly or indirectly controls FLAMES and Licensor’s Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (c) certify to Licensor in a signed and notarized written instrument that it has complied with the requirements of this Section 13.5; and
(2) all amounts payable by Licensee to Licensor of any kind are immediately payable and due no later than 30 days after the effective date of the expiration or of the termination of this Agreement.
13.6 Surviving terms. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 13.6, Section 2, Section 5, Section 6, Section 8, Section 9, Section 11, Section 12, Section 13.5, Section 14, and Section 15.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other-whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.
“Agreement” has the meaning set forth in the preamble.
“Confidential Information” has the meaning set forth in Section 8.1.
“Control” (including in the phrases ‘Controlled by’ and ‘under common Control with’) means the direct or indirect power to direct or cause the direction of the management or policies of a Person-whether through the ownership of voting securities, by contract, or otherwise.
“Disclosing Party” has the meaning set forth in Section 8.1.
“Distribute” (or “Distribution“) means to provide or make available any portion of FLAMES or its functionality by any means to any party other than the Licensee.
“Documentation” means Licensor’s user manuals, website pages, training videos, and other materials, in any form, that describe or relate to FLAMES, including the components, features, functionality, installation, operation, and requirements of FLAMES.
“Effective Date” means the date on which Licensee or any Licensee Representative first manifests assent to this Agreement or purchases a license to, downloads, installs or uses FLAMES.
“Feedback” means any comments, questions or suggestions relating to FLAMES submitted by Licensee to Licensor by any means or submitted by Licensee in a form or means that is accessible by the public.
“FLAMES®” means a family of commercial software products, including executable programs, plug-ins, object files, libraries, source code, data files, Documentation, media, and other materials, supplied or sold by Licensor.
“Force Majeure Event” has the meaning set forth in Section 15.11(1).
“Indemnitee” has the meaning set forth in Section 11.3.
“Indemnitor” has the meaning set forth in Section 11.3.
“Initial Delivery Date” means the date on which Licensor first provides FLAMES to Licensee by any means, including without limitation by download or on tangible media.
“Initial Term” has the meaning set forth in Section 13.1.
“Intellectual Property Rights” means any and all (registered and unregistered) rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction. For the avoidance of doubt, the term “Law” includes (but is not limited to): (1) the Freedom of Information Act; (2) the Tucker Act; (3) the Federal Tort Claims Act; (4) the Anti-Assignment Act; (5) the Competition in Contracting Act; (6) the Anti-Deficiency Act; (7) 41 U.S.C. ??6301; (8) 28 U.S.C. ??516; (9) the Americans with Disabilities Act; (10) the Prompt Payment Act; (11) the False Claims Act; (12) the Contract Disputes Act, as applicable; (13) the Defense Production Act; (14) the Export Control Reform Act; (15) the Arms Export Control Act; (16) the Foreign Investment Risk Review Modernization Act; (17) the Foreign Corrupt Practices Act; (18) the Export Administration Regulations; (19) the International Traffic in Arms Regulations; (20) the Federal Acquisition Regulation, as applicable; (21) the Defense Federal Acquisition Regulation Supplement, as applicable; (22) Title 35 of the United States Code; (23) Title 17 of the United States Code; (24) the Lanham Act; and (25) the Defend Trade Secrets Act of 2016.
“Licensee” means any Person who purchases a license to, downloads, installs, or uses FLAMES, including but not limited to any Person identified on the Order Confirmation as the licensee, purchaser, or customer of Licensor, together with the Affiliates of such Person.
“Licensor” has the meaning set forth in the preamble to this Agreement.
“Licensee Contribution” means any software-whether in source-code form or in object-code form-or any other data, information or content that Licensee makes available to Licensor by any means (e.g., by uploading to a repository or Internet hosting service, by submissions to forums, by submissions to a wiki, by email, or otherwise).
“Licensor Indemnitee” has the meaning set forth in Section 11.2.
“Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Open Source Components” means any software component that is subject to any open source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
“Order Confirmation” means the order confirmation or invoice which Licensee received from Licensor in response to a purchase of FLAMES.
“Party” has the meaning set forth in the preamble.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Product” means any software, source code, libraries, executable programs, results, data, or any other information developed by Licensee using FLAMES or that contains any portion of FLAMES.
“Receiving Party” has the meaning set forth in Section 8.1.
“Renewal Term” has the meaning set forth in Section 13.2.
“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“Term” has the meaning set forth in Section 13.2.
“Third-Party Materials” means software, libraires, data, and any other information, in any form or medium, that are utilized by FLAMES and that are not proprietary to Licensor, including any Open Source Components.
“U.S. Government” means any agency or instrumentality of the United States that enters into a contract pursuant to authority derived from the Constitution or the laws of the United States.
“Warranty Period” has the meaning set forth in Section 10.2.
15.1 Further assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
15.2 Relationship of the parties. During the Term, the relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
15.4 Notices. Any notice, request, consent, claim, demand, waiver, or other communication under this Agreement have legal effect only if in writing and addressed to a Party as is indicated on the Order Confirmation (or to such other address or such other person that such addressee Party may designate from time to time in accordance with this Section 15.4). Notices sent in accordance with this Section 15.4 will be deemed effectively given: (1) when received, if delivered by hand, with signed confirmation of receipt; (2) when received, if sent by a nationally recognized overnight courier, signature required; (3) when sent, if by facsimile (with confirmation of transmission) or email, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (4) on the tenth day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
15.5 Interpretation. For purposes of this Agreement: (1) the words ‘include,’ ‘includes’ and ‘including’ are deemed to be followed by the words ‘without limitation’; (2) the word ‘or’ is not exclusive; (3) the words ‘herein,’ ‘hereof,’ ‘hereby,’ ‘hereto’ and ‘hereunder’ refer to this Agreement as a whole; (4) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (5) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (A) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices to, this Agreement; (B) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (C) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
15.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
15.7 Entire agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes and takes precedence over all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter — including all terms of an order for FLAMES and all prior versions of license agreements related to any version of FLAMES.
15.8 Assignment and Transfer. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which consent shall not unreasonably be delayed or withheld. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15.8 is void. This Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
15.9 Export regulation. Licensee shall not-and shall not permit any third parties to-(directly or indirectly) export, re-export, or release FLAMES to-or make FLAMES accessible from-any country, jurisdiction, party, or Person to which export, re-export, or release is prohibited by applicable Law, including U.S. export control laws and Export Administration Regulations and the International Traffic in Arms Regulations. Licensee shall be responsible for any breach of this Section 15.9 by its-and its successors’ and permitted assigns’-parents, Affiliates, employees, officers, directors, partners, members, shareholders, customers, agents, distributors, resellers, or vendors. Licensee shall comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval prior to Distributing FLAMES outside the U.S.
15.10 U.S. Government rights. FLAMES is a ‘commercial product’ as that term is defined at 48 C.F.R. ??2.101, consisting of ‘commercial computer software’ and ‘commercial computer software documentation’ as such terms are used in 48 C.F.R. ??12.212. Accordingly, if Licensee is an agency of the U.S. Government or any contractor therefor, Licensee receives only those rights with respect to FLAMES as are granted by this Agreement, in accordance with (1) 48 C.F.R. ??227.7201 through 48 C.F.R. ??227.7204, with respect to the Department of Defense and their contractors, or (2) 48 C.F.R. ??12.212, with respect to all other U.S. Government licensees and their contractors.
15.11 Force majeure
(1) No breach or default. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any unforeseeable circumstances beyond such Party’s reasonable control (a “Force Majeure Event”), including: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns, or other industrial disturbances. Either Party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
(2) Affected party obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected Party will give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
15.12 No third-party beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
15.13 Amendment and modification; waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15.14 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.15 Governing law; jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Alabama without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Alabama. Any legal suit, action, or proceeding arising out of either this Agreement or the licenses granted hereunder will be instituted in the federal courts of the United States (located in the Northeastern Division of the United States District Court for the Northern District of Alabama) or the courts of the State of Alabama (located in the city of Huntsville and the county of Madison County), and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
15.16 Waiver of jury trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
15.17 Equitable relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6, Section 8, Section 9, or Section 11 of this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
15.18 Attorneys’ fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of this Agreement, the prevailing Party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
[End of this Agreement.]