OPENCLOUD'S EDUCATIONAL COMMUNITY LICENSE
THIS SOFTWARE LICENSE AGREEMENT (this "Agreement") is entered into and effective as of the ___ day of ______ 200[ ] ("Effective Date") by and between OpenCloud Limited ("OpenCloud" or "Licensor"), with its principal place of business at 140 Cambridge Science Park, Milton Road, Cambridge, CB4 0GF, UK and [Licensee's full name here] ("Licensee") with its principal place of business at [Licensee's address here].
"Agreement" means this end user software license agreement between OpenCloud and Licensee;
"Development Use" means use of the Software by Licensee to design, develop and/or test new applications for Educational Use;
"Documentation" means OpenCloud's current user manuals, operating instructions and installation guides generally provided with the Software to its licensees;
"Maintenance Release(s)" means releases, upgrades and updates to the Software and the Documentation, which are made available to Licensee from time to time;
"Order" means the document by which Software and Support Services are ordered by Licensee or its agent on behalf of Licensee. The Order shall reference and be solely governed by this Agreement;
"Education Use" means using the Software in Licensee's applications for educational purposes only, which may include third party Licensee's access to, or use of, such applications. Educational Use does not include the right to reproduce the software for sublicensing, resale, or distribution, including without limitation, operation on a time sharing or service bureau basis or distributing the software as part of an ASP, VAR, OEM, distributor or reseller arrangement;
"Software" means the object code versions of the Software as described on an Order and the related Documentation plus any Maintenance Releases issued by OpenCloud from time to time and implemented by Licensee;
"Support Services" means technical support for Software pursuant to the support agreement between OpenCloud and Licensee;
"Support Services Term" means the first year after the Effective Date of this Agreement and a related Order, plus any subsequent extension periods; and
"Location" means [site location here] and any additional locations agreed to in writing by both parties hereto from time to time.
a. License Grant. OpenCloud grants Licensee a perpetual (subject to clause 7), fee-bearing, non-exclusive and non-transferable (except as permitted herein) license to use the Software and the Documentation solely for Licensee's Development Use for Educational Use (and as specified in an Order setting forth the number of messages, CPU's or servers) subject to the terms and conditions of this Agreement and the following limitations:
(i) Licensee may not copy the Software, except for archival or disaster recovery purposes, and if Licensee does copy for these purposes, Licensee will preserve any proprietary rights notices on the Software and place such notices on any and all copies Licensee has made or makes;
(ii) Licensee agrees not to reverse engineer, decompile, decrypt, extract, disassemble, or otherwise attempt to determine source code or protocols from the Software;
(iii) Licensee agrees not to lease, rent or sublicense the Software to any third party, or otherwise use it except as permitted in this Agreement;
(iv) Licensee may not disclose the results of any performance benchmarks to any third party without OpenCloud's prior written consent;
(v) title, ownership rights and all intellectual property rights in and to the Software shall remain the sole and exclusive property of OpenCloud. OpenCloud retains all rights not expressly granted to Licensee in this Agreement;
(vi) the Software is not designed or intended for use in, or on applications intended for in wireless or embedded systems, on-line control of an aircraft, air traffic, aircraft navigation or aircraft communications, in the design, construction, operation or maintenance of any nuclear facility. Licensee warrants it will not use or re-distribute the Software for any such use purposes;
(vii) the Software is not used in any system or network where the messages exceed 100 per second; and
(viii) the Software is not installed at more than one site.
b. Consultant Use of Software. Licensee may allow its third party consultants to access and use the Software solely for Licensee's educational operations as permitted hereunder, provided they have signed an agreement with Licensee protecting OpenCloud's intellectual property with terms no less stringent than these terms and conditions and that Licensee ensures that any such third party consultants use of the Software complies with the terms of this Agreement.
c. Audit. OpenCloud may, at any time during the term of this Agreement and with 7 days prior written notice, request and gain access to Licensee's premises subject to Licensee's security procedures, for the limited purpose of conducting an audit to determine and verify that Licensee is in compliance with this Agreement. Licensee will promptly grant such access and cooperate with OpenCloud in the audit. The audit will be restricted in scope, manner and duration to that reasonably necessary to achieve its purpose and not disrupt Licensee's operations. Licensee shall be liable for promptly remedying any underpayments revealed during the audit. If the audit reveals a discrepancy in excess of five per cent (5%), Licensee will also be liable for the costs of the audit.
3. Confidential Information.
a. By virtue of this Agreement, Licensee may have access to information that is confidential to OpenCloud ("Confidential Information"). Confidential Information shall be limited to the Software, the terms and pricing (if any) under this Agreement, and all information clearly identified as confidential, or which, given the circumstances surrounding disclosure, ought to be treated as confidential.
b. Licensee agrees to hold any and all Confidential Information in confidence during the term of this Agreement and such duty of confidentiality shall survive the termination or expiration of this Agreement. Licensee agrees not to make any Confidential Information available in any form to any third party unless expressly permitted in this Agreement. OpenCloud may reasonably use Licensee's name and a description of Licensee's use of the Software for its investor relations and marketing purposes.
4. Payments and taxes.
There are no fees payable directly to OpenCloud under this Agreement. The terms and conditions of this Agreement shall prevail regardless of any pre-printed or conflicting terms on a purchase order, other correspondence, and any and all verbal communication. Licensee will pay all sales, use, VAT, and other consumption taxes, personal property taxes and other taxes (other than those based on OpenCloud's net income) arising out of the supply and support of the Software unless Licensee furnishes satisfactory proof of exemption.
5. Intellectual Property Indemnification.
a. Defense. If a third party claims that Licensee's use of the Software infringes any patent, copyright, trademark or trade secret, Licensee must promptly notify OpenCloud in writing. OpenCloud will defend Licensee against such claim if Licensee reasonably cooperates with OpenCloud and allows OpenCloud to control the defence and all related settlement negotiations, and then OpenCloud will indemnify Licensee from and against any damages finally awarded against Licensee for such infringement.
b. Injunctive Relief. If an injunction is sought or obtained against Licensee's use of the Software as a result of a third party infringement claim, OpenCloud may, at its sole option and expense:
(i) procure for Licensee the right to continue using the affected Software;
(ii) replace or modify the affected Software with functionally equivalent software so that it does not infringe; or
(iii) if either (i) or (ii) is not commercially feasible, terminate the licenses and refund the license fees received from Licensee for the affected Software less a usage charge based on a 36 month amortization schedule.
c. Disclaimer of Liability. OpenCloud shall have no liability for any third party claim of infringement based upon:
(i) use of than the then current, unaltered version of the applicable Software, unless the infringing portion is also in the then current, unaltered release;
(ii) use, operation or combination of the applicable Software with non-OpenCloud programs, data, equipment or documentation if such infringement would have been avoided but for such use, operation or combination; or
(iii) any third party software.
The foregoing constitutes the entire liability of OpenCloud, and Licensee's sole and exclusive remedy with respect to any third party claims of infringement of such intellectual property rights.
6. Limitation of Liability.
a. Limitation. OpenCloud's aggregate liability to Licensee for damages concerning performance or non-performance by OpenCloud or in any way related to this Agreement, and regardless of whether the claim for such damages is based in contract, tort, strict liability, or otherwise, shall not exceed the license fees received by OpenCloud from the Licensee for the affected Software for the 12 month period preceding the occurrence of such liability.
b. No Consequential Damages. In no event shall OpenCloud be liable for any indirect, incidental, special, punitive or consequential damages, including without limitation damages for lost data or lost profits, even if OpenCloud has been advised as to the possibility of such damages.
7. Term and Termination.
a. This Agreement will continue for 1 year and will automatically renew in 1 year increments unless:
(i) either party terminates the Agreement by providing written notice to the other at least 60 days prior to the anniversary of the Effective Date;
(ii) Licensee or a third party fails to pay OpenCloud any fees arising out of this Agreement and fails to remedy that breach within 30 days of such fees becoming due and payable; or
(iii) either party declares bankruptcy or otherwise fails to perform any material obligation under this Agreement and does not undertake an effort to substantially cure such default within 30 days after written notice is given to the defaulting party.
b. In the event of clauses 7(a) (ii) or (iii), the non-defaulting party may immediately terminate this Agreement by providing written notice of termination to the defaulting party.
c. If Licensee breaches this Agreement in any way other than that described in clauses 7(a) and 7(b) above, the licenses granted hereunder shall automatically and immediately terminate and Licensee shall promptly, at OpenCloud's direction, destroy or return all affected Software and Documentation. Upon termination of this Agreement the provisions of clauses 3, 5(c), 6(b), 8 and 9 will survive.
8. Trademarks and logos
This Agreement does not authorise Licensee to use any name, trademark or logo of OpenCloud. Licensee acknowledges that OpenCloud owns the 'Rhino' and 'OpenCloud' trademarks, logos and icons. Licensee shall neither take nor permit any action that shall delete or obscure OpenCloud's copyright legend on any Software and any related documentation or materials.
OpenCloud warrants that it has the right to license the Software and that such Software does not infringe on any patent, copyright or other proprietary right of any person.
OpenCloud has granted to Licensee a 60 day warranty in the Support Agreement if support has been purchased. All express or implied representations and warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement are hereby excluded.
Publication of results based on OpenCloud product are subject to review by OpenCloud prior to publication.
OpenCloud encourages the Licensee to share application developments with the developer community. Plus where possible to provide any source code for publication on the Developer Portal.
a. Force Majeure. Licensor shall not be liable for any delay or failure in performance due to causes beyond its reasonable control.
b. Compliance with Law. Licensee may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with this Agreement as well as any and all and other applicable laws and regulations.
c. Assignment. Licensee may not assign this Agreement without OpenCloud's prior written consent, which will not be unreasonably withheld.
d. Severability. If any part of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other parts of the Agreement.
e. No Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
f. Notices. All notices permitted or required under this Agreement shall be in writing and shall be delivered in person, by FAX, overnight courier service or mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified above or such other address as either party may specify in writing. Any notices sent to OpenCloud must be marked to the attention of the Chief Financial Officer. Such notice shall be deemed to have been given upon receipt.
g. Governing Law. This Agreement will be governed by both the substantive and procedural laws of the United Kingdom excluding its conflict of law rules.
h. Entire Agreement. Any amendment or modification to the Agreement must be in writing signed by both parties hereto. This Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written negotiations, communications or agreements regarding the subject matter hereof. This Agreement shall also supersede all terms of any "shrinkwrap" or "clickwrap" license included in any package, media, or electronic version of OpenCloud furnished Software and any such Software shall be licensed under the terms of this Agreement. Licensee further agrees that any and all Orders issued by Licensee or on Licensee's behalf for Software will be governed by this Agreement. The terms and conditions of this Agreement shall prevail regardless of any pre-printed or conflicting terms on Orders, the latter having no effect.
The parties have caused this Agreement to be executed by duly authorised representatives as of the Effective Date.