1. Grant of License
Licensor hereby grants limited, non-exclusive, non-transferrable licenses to Licensee to use (and when specifically indicated herein, to distribute or resell) the Software as further specified at Paragraph 3 below, and Licensee hereby agrees to pay the licensing fee (“Licensing Fee”) for its licensed use (distribution or resale) of such Software in the amount specified on the attached invoice (“Invoice”), said Invoice being incorporated herein by reference. The terms for pricing and any other special payment terms applicable to the Software products are set forth on the Invoice. The Licensing Fee specified on the Invoice shall be subject to an annual three percent (3%) cost-of-living increase effective each year on the anniversary of the Effective Date hereof.
Unless earlier terminated by the Parties in accordance with this Paragraph 2 or in accordance with Paragraph 13 below, the initial term of this Agreement shall commence as of the Effective Date and shall terminate as of the first one-year anniversary thereof (“Initial Term”). This Agreement shall automatically renew for successive one year periods after the expiration of its Initial Term, on its same terms and conditions except that the Licensing Fee shall increase annually by three percent (3%), unless either Party notifies the other Party at least thirty (30) days in advance of such annual renewal date, of its intent not to renew the Agreement. The “Term” of this Agreement shall refer to its Initial Term plus any annual renewal thereof. Upon termination of this Agreement, Licensee agrees to cease all further use of the Software.
3. Licensed Products / Licensing Terms
The following list identifies which PhotoLynx® software products are included in the definition of “Software” hereunder and are being licensed by Licensee pursuant to this Agreement as well as certain specific terms and conditions applicable to each such Software product’s license: PLIC, PLIC Books, PLIC Books Sports, PLIC Elements, PLIC Experience Cart, PLIC Go, PLIC Match, and PLIC Memories.
4. Authorized Use
Licensee may use the Software on only one computer or computerized device except to the extent that the definition of Software includes Software permitted to be used on multiple computers. If a license is granted to use the Software on multiple computers, each of those computers must be owned, operated or controlled by Licensee’s Business (defined below) and used primarily for business, governmental, charitable or educational purposes (as applicable) in the conduct and operation of Licensee’s Business. As used in this Agreement, the term “Business” shall mean a company, sole proprietorship, corporation, partnership, limited liability company, charitable organization, governmental entity, or any educational entity. Any licenses granted hereunder to distribute or resell the Software shall be subject both to this Agreement and to any special terms and conditions set forth in a separate Distribution Agreement or Reseller Agreement entered into by and between Licensee and Licensor.
All licenses listed above include free Updates (defined below) to the licensed Software for a period of twelve (12) months following Licensee’s receipt or download of the Software, whichever occurs first. Any upgrades, patches, error corrections, new or modified versions of the Software or any component thereof (collectively referred to herein as “Updates”) provided to Licensee shall be deemed to be part of Software subject to this Agreement. Licensee acknowledges and agrees that nothing in this Agreement obligates Licensor to create any Updates.
Licensee agrees that aspects of the licensed materials and Software, including the specific design and structure of the Software, constitute trade secrets and/or copyrighted material of Licensor. Licensee agrees not to disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of Licensor. Unless specifically authorized herein, Licensee agrees not to distribute, rent, lease or sublicense all or any portion of the Software; (ii) modify or prepare derivative works of the Software; (iii) use the Software in a computer-based services business or publically display visual output of the Software; (iv) transmit the Software over a network, by telephone, or electronically using any means; or (v) decompile, disassemble or otherwise reverse engineer the Software. Licensor acknowledges that the Software is subject to United States and other export control laws, including export administration regulations. Licensor shall not export, re-export or divert the Software in contravention of those laws.
7. Ownership of Intellectual Property
Licensee acknowledges and agrees that Licensor owns all ownership rights, patent rights, copyrights, trademarks, trade secrets and other proprietary and intellectual property rights in and to the Software, including all modifications thereto. Except as expressly stated herein, nothing in this Agreement is intended to transfer any ownership rights, patent rights, copyrights, trademarks, trade secrets and/or other proprietary and intellectual property rights from one Party to another.
8. Privacy, Data Processing and Related Requests
9. Data Security, Sub-Contracting and Data Incidents
Licensor shall maintain appropriate physical, organizational and technological measures to protect Personal Information under Licensor’s possession against loss, theft, and unauthorized access, disclosure, copying, use or modification, and Licensor shall provide a level of security appropriate to the sensitivity of Personal Information. Licensee acknowledges and agrees that Licensor may retain any affiliate, contractor or agent to process Personal Information in accordance with this Agreement, and Licensor shall impose obligations that are no less onerous on any such affiliate, contractor or agent than the obligations on Licensor under this Agreement. When required under applicable Data Protection Legislation, Licensor shall notify Licensee without undue delay of any actual unauthorized access to, or use, loss or disclosure of Personal Information (“Data Incident”), and in the event a Data Incident requires notification by Licensee to individuals concerned or relevant regulators, the Parties agree to cooperate in good faith on developing any public statements or required notices.
10. Cross-Border Data Transfers
Licensee acknowledges and agrees that Licensor, including any affiliate, contractor or agent retained by Licensor in accordance with Paragraph 9 above, may process, access and store the Personal Information in one or more third countries. Notwithstanding any other provision of this Agreement, Licensee shall be solely responsible for compliance with data transfer requirements under applicable Data Protection Legislation, including obtaining all relevant consents and authorizations required to enable Licensor (or its affiliate, contractor or agent, as applicable) to process, access and store the Personal Information in one or more third countries; Licensee shall indemnify, defend and hold harmless Licensor from any and all damages, costs, claims, expenses or other liability, including reasonable attorneys’ fees, arising from or relating to Licensee’s breach or alleged breach of this Paragraph 10.
11. Data Retention
Licensor will not retain or process Personal Information for longer than is necessary to fulfil the Purpose, and Licensor will permanently and securely delete such Personal Information within reasonable delay after the earlier of completion of the Purpose or termination of this Agreement, unless otherwise required or permitted under applicable Data Protection Legislation.
Unless otherwise specified herein, all licenses granted hereunder are non-transferrable without the prior written consent of Licensor. If Licensee is expressly permitted to transfer the Software and desires to do so, Licensee agrees to transfer all computer programs and documentation relating to the transferred Software and to erase any and all copies of the transferred Software in Licensee’s possession. Licensee acknowledges that any license granted hereunder respecting such transferred Software are automatically terminated upon the transfer of such Software, unless otherwise agreed to in writing by Licensor.
13. Limited Software Warranty
Licensor warrants that for a period of thirty (30) days from the date of license (“Warranty Period”): (i) the media on which the Software is furnished will be free from defects in materials and workmanship under normal use; and (ii) the Software will substantially conform to its published specifications. Except for the foregoing, the Software is furnished “AS IS” and without warranty as to the results and performance you may obtain by using the Software. This limited warranty extends only to the Licensee as the original licensee. In no event does Licensor warrant that the Software is error free, or that Licensee will be able to operate the Software without problems, interruptions or other program limitations. Licensee’s exclusive remedy and the entire liability of Licensor under this limited warranty will be, at the option of the Licensor, either repair, replacement, or a partial refund of the Licensing Fee paid by Licensor in connection with the licensing of the Software. To obtain warranty service during the Warranty Period, Licensee must return the Software product along with all documentation accompanying it, in its original condition (by mail with a return-receipt requested) along with a detailed description of the problem to the Licensor and Licensor must receive the returned Software and documentation prior to the expiration the Warranty Period. The defective Software will be replaced or repaired at no additional charge to Licensee. If Licensor is unable to replace or repair the Software, Licensee will receive a partial refund of the Licensing Fee for the Software which shall be no greater than ninety-five percent (95%) and no less than eight percent (80%) of the Licensing Fee paid and the licenses granted hereunder in connection with such defective Software will terminate. In general, the greater the overhead costs incurred by Licensor in providing Licensee with the licensed Software, the lesser the percentage of the Licensing Fee refunded to Licensee will be. Notwithstanding the foregoing, the determination of the amount of the Licensing Fee refunded shall rest entirely in the sole discretion of Licensor. If Licensee receives a partial refund of the Licensing Fee pursuant to this Paragraph 13, Licensee acknowledges that any licenses granted hereunder with respect to such Software are terminated and Licensee agrees to erase any and all copies of such Software in its possession. If Licensee fails to return the Software and all of the documentation accompanying the Software prior to the expiration of the Warranty Period, then the licenses granted hereunder shall not be terminable by Licensee prior to the expiration of the Initial Term of this Agreement and Licensee shall be obligated to pay the full Licensing Fee throughout the Term of this Agreement. The above described limited warranty DOES NOT apply to any beta software, any software made available for testing or demonstration purposes, any temporary software modules or any software for which Licensor does not receive a Licensing Fee. All such software products are provided AS IS without any warranty whatsoever.
EXCEPT AS PROVIDED IN PARAGRAPH 13 ABOVE, ALL PHOTOLYNX® SOFTWARE AND DOCUMENTATION ACCOMPANYING SUCH SOFTWARE IS PROVIDED ON AN “AS-IS” BASIS AND ANY AND ALL USE OF THE SOFTWARE IS AT LICENSEE’S OWN RISK. LICENSOR DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NEITHER THIS AGREEMENT NOR ANYTHING IN THE DOCUMENTATION ACCOMPANYING THE SOFTWARE IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, LOSS OF DATA, LOSS OF SAVINGS, LOSS OF PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY ASSERTED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION ACCOMPANYING THE SOFTWARE, THE LICENSES GRANTED HEREUNDER, oR LICENSEE’s OR ANY THIRD PARTY’s, USE, INABILITY TO USE, OR MISUSE OF THE SOFTWARE OR FROM ANY SERVICES PROVIDED BY LICENSOR IN CONNECTION THEREWITH, EVEN IF LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL LICENSOR’S LIABILITY TO LICENSEE, WHETHER IN CONRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EXCEED THE LICENSING FEE PAID BY LICENSEE. Some states and jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, in which case the above limitation or exclusion may not apply.
15. Entire Agreement
Licensee agrees that except for the attached Invoice, any End User Software License Agreement that may or may not be included as part of a licensed Software product, and any written Distribution Agreement or Reseller Agreement entered into between Licensor and Licensee, that this Agreement is a complete and exclusive statement of the rights and liabilities of the Parties and shall supersede any and all prior or contemporaneous, written or oral, agreements, proposals, representations, or understandings between the Parties.
16. Successors and Assigns
All covenants, representations, warranties and agreements of the parties contained herein shall be binding upon and inure to the benefit of their respective heirs, executors, administrators, personal representatives, successors and permitted assignees.
No delay or omission on the part of any Party hereunder in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy. No waiver of any default shall constitute a waiver of any other default, whether of the same or any other covenant or condition. No waiver, benefit, privilege or service voluntarily given or performed by any Party shall give the others any contractual right by custom, estoppel or otherwise, any waiver by a Party must be in writing signed by that Party expressly specifying the subject and extent of the waiver.
This Agreement may not be modified, amended or changed by the Parties, except by a writing specifying the modification, amendment or change, signed by all the Parties hereto, or their then successors, if any.
Should any part of this Agreement, for any reason, be declared invalid, then such portion shall be invalid only to the extent of the prohibition without invalidating or affecting the remaining portions of the Agreement, or without invalidating or altering said portions of this Agreement within states or localities where they are not prohibited by law or court decree.
Each person signing this Agreement warrants and represents that he or she has the full and complete authority to do so on his or her own behalf or on behalf of the Party for which he or she signs.
This Agreement may be executed by facsimile signature in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
22. Governing Law
This Agreement has been executed in and shall be governed by the laws of t