This LICENSE AGREEMENT (“Agreement”) is made as of the Effective Date noted below by and between LOFA™ Industries Inc. (“LOFA”), a Georgia corporation with a principal place of business at 250 Hembree Park Drive, Suite 122, Roswell GA 30076, and Licensee as defined below.
Standard Terms and Conditions
- Definitions. In this Agreement, unless the context otherwise requires, the following terms shall have the following meanings:
- Agreement shall mean this agreement (as such may be amended from time to time in accordance with the provisions hereof), information sheets and any exhibits, attachments or schedules referenced herein.
- LOFA Notices shall mean all proprietary trademark, patent and copyright notices present in the Materials.
- Effective Date shall mean the date Licensee purchases LOFA hardware and/or software.
- Host Device shall mean the product or device that hosts LOFA software.
- New Releases means material improvements or changes to the LOFA Software that may enhance operating performance. A New Release is signified by an increase in the release number to the left of the first decimal.
- Information Sheets shall mean the attached exhibits which contain specific license terms.
- LOFA Software shall mean a hardware and/or software item listed in Exhibit B – Products/Deliverables.
- Licensee Device shall mean the specific LOFA hardware created by or for Licensee combining the LOFA software with the Host Device as identified in Exhibit A.
- Materials shall mean all hardware and/or software products and special documentation listed in Exhibit B – Products/Deliverables, as well as any standard documentation distributed along with such products.
- Runtime means those portions of the Licensed Products specifically designated as ‘runtime’ including libraries and sample code.
- End User shall mean the end user of the Licensee Devices.
- New Releases and Updates LOFA may, in its sole discretion, develop any New Releases to LOFA Software; however, LOFA has no obligation to develop, sell, or support New Releases.
Acceptance of Terms of this Agreement
In order to use the LOFA software referenced herein, you must first agree to the provisions of this Agreement. Use of LOFA software is prohibited without acceptance of all the terms in the Agreement.
Subject to applicable government export regulations, LOFA grants Licensee a world-wide, non-exclusive, non-transferable, perpetual license subject to limitations as defined below to use, LOFA Software solely for use in the Licensee Device. No such Licensee Devices(s) incorporating any of the Materials may be distributed, licensed, sold, rented, or otherwise provided to third parties without the express written permission by LOFA.
- License Restrictions and Conditions. Licensee agrees to the following:
- No distribution of licensee devices incorporating the materials without express written permission.
- This license is restricted to use with up to one (1) specific identified Licensee Devices; additional devices or products from Licensee require additional licenses.
- Ownership, Trade Secrets, Protection.
- All title and ownership in and to the LOFA Software, LOFA trademarks, and the LOFA-supplied portions of items contained in this Agreement, including all intellectual property rights such as copyright, trade secrets, patents, trade-marks and service marks, shall at all times remain with LOFA and its licensors as appropriate. Should Licensee offer any warranties to third parties on behalf of the Licensee Devices, Licensee must be solely responsible for these warranties.
- Licensee agrees that the techniques, algorithms, ideas, concepts, code, and processes contained in the Materials constitute LOFA’s trade secrets and are subject to confidentiality protection. As such, Licensee agrees not to reverse engineer, disassemble or decompile, or otherwise attempt to derive the source code for, or perform cryptographic analysis upon, any Licensed Products to the extent this restriction is permitted by law. To the extent the following prohibition is permitted by law, Licensee is prohibited from creating any Licensee Devices which gives third party proprietary software direct access to any of the following items within the LicensedProducts: (i) supported API(s); (ii) security and authentication functionalities; or, (iii) any undocumented internal functionality.
Licensee agrees to take all reasonable measures to keep confidential the Materials, and protect LOFA’s (and its licensor’s) rights in the Materials (including, for purposes of this Section, additional hardware, software or information provided. Licensee agrees not to disclose the confidential portions of the Materials to anyone, or copy them, except as permitted under this Agreement.
- Customization of a customer facing page does not grant ownership rights of software
As used in this Section, the phrase “confidential portions of the Materials” specifically does not include the Runtime elements solely to the extent that such elements are distributed in accordance with this Agreement.
- Compliance with Laws. Licensee must comply with all applicable export, import, or other relevant laws of any applicable jurisdiction. Determination of the applicable law is Licensee’s responsibility. Licensee understands that the Licensed Product is cryptographic in nature and therefore the Materials are highly regulated. Licensee is strictly prohibited from exporting, re-exporting or importing the Materials (after initial delivery by LOFA to Licensee), regardless of method (including, for example and not by limitation by use of physical delivery, e-mail, or download from FTP or website, etc.), without first complying with all applicable government use, import, or export laws, rules, regulations, orders, and obtaining any necessary approvals or permits. Obtaining any necessary export or import approval for Licensee Devices and/or the Materials (after initial delivery of the Materials by LOFA to Licensee) is the sole responsibility of Licensee.
- Fees. Licensee fees are referenced in the Purchase Order.
- Limited Warranty. LOFA warrants for a period of thirty (30) days from the first date that it delivers to Licensee the Materials that (a) the Licensed Product(s) will operate in conformity with the material specifications for such item; (b) will be free from material defects; and (c) the media, if any, on which the Licensed Product is furnished will be free from material defects in materials and faulty workmanship under normal use. LOFA’s sole liability and Licensee’s exclusive remedy for any failure to meet these warranties will be limited to repair or replacement of the defective Materials at LOFA’s option and expense.
- Warranty Disclaimer. Except as provided in this Agreement, LOFA transfers the Materials to Licensee on an “as is” basis. The warranties in this Agreement, are in lieu of all other warranties or conditions, and LOFA makes no other warranty, condition or representation of any kind whether express or implied, and LOFA expressly disclaims the implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, infringement and those arising by statute or otherwise in law or from the course of dealing or usage of trade. LOFA does not represent or warrant that the Materials will meet any or all of Licensee’s particular requirements, that the operation of the Materials will be error-free or uninterrupted, or that all programming errors in the Licensed Product can be found in order to be corrected. All warranties provided in this Agreement are solely for the benefit of, and may not be transferred by, Licensee, to any third party.
- Limits on Scope of Indemnity. LOFA will have no liability for any infringement arising from (i) the use of the Licensed Product other than as set forth in its accompanying documentation or specifications; (ii) the modification of the Licensed Product; or (iii) the combination or use of the Licensed Product with other software, hardware, items or processes to the extent such infringement is not foreseeable use of the Licensed Product. This Section states LOFA’s entire obligation with respect to any claim regarding the intellectual property rights of any third party.
- Licensee Indemnification Obligation. Licensee shall indemnify, defend and hold harmless LOFA, its directors, officers, and employees from and against any claim, demand, cause of action, loss, damage, liability suit, proceeding, judgment, or cost (including attorney fees), brought against LOFA which is based on the creation, use or distribution of Licensee Devices to the extent that such suit or proceeding does not arise or result from: (i) LOFA’s material breach of any agreement, obligation, representation, warranty or covenant contained in this Agreement; (ii) any wrongful, negligent action or failure to act by LOFA, its employees, agents or independent contractors; or, (iii) any liability for which LOFA is obligated to indemnify Licensee under this Section.
- Term and Termination.
- Term. Unless otherwise specified in Exhibit A, the term of this Agreement will commence on the Effective Date and will continue into perpetuity unless otherwise terminated earlier under this Agreement.
- Termination for Cause. Any of the following shall suffice to terminate this Agreement:
- If Licensee materially breaches any term or condition of this Agreement and fails to cure that breach within thirty (30) days after receiving written notice of the breach.
- This Agreement will terminate automatically without notice and without further action by LOFA in the event Licensee becomes insolvent (i.e., becomes unable to pay its debts in the ordinary course of business as they come due), makes an assignment in violation of this Agreement or makes an assignment for the benefit of creditors or if any other bankruptcy proceedings are commenced by or against Licensee.
- Consequences. Upon the termination of this Agreement for any reason: (i) all rights granted hereunder will automatically revert to LOFA; (ii) Licensee must (A) return to LOFA (or, at LOFA’s option, destroy) the originals and all copies of the Materials in Licensee’s possession or control; (B) erase any and all of the foregoing from all computer memories and stored Licensee Devices within its possession or control; and (C) provide LOFA with a written statement certifying that it has complied with the foregoing obligations. End use licenses to Licensee Devices for Customers granted by Licensee to Customers prior to termination will survive any such termination.
- Limitation of Liability.
- LICENSEE AGREES THAT ANY LIABILITY ON THE PART OF LOFA FOR BREACH OF THE WARRANTIES CONTAINED HEREIN OR ANY OF THE OTHER PROVISIONS OF THIS AGREEMENT OR ANY OTHER BREACH GIVING RISE TO LIABILITY OR IN ANY OTHER WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY CAUSE OF ACTION WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION (INCLUDING BREACH OF CONTRACT, STRICT LIABILITY, TORT INCLUDING NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY), WILL BE LIMITED TO LICENSEE’S DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT PAID TO LOFA BY LICENSEE FOR THE LOFA HARDWARE.
- LICENSEE AGREE THAT IN NO EVENT WILL LOFA BE LIABLE FOR DAMAGES IN RESPECT OF INCIDENTAL, ORDINARY, PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES EVEN IF LOFA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION, LOST BUSINESS REVENUE, LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, ECONOMIC LOSS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY OR ANY CLAIM AGAINST LICENSEE BY ANY OTHER PARTY.
- LICENSEE ACKNOWLEDGES THAT LOFA’S LIMITED LIABILITY EXPRESSED IN THIS AGREEMENT REPRESENTS A MATERIAL BASIS FOR SETTING THE FEES FOR LOFA HARDWARE.
- Use of Trademarks.
Any and all trademarks and trade names which LOFA uses in connection with the license granted hereunder (“LOFA Marks”) are and remain the exclusive property of LOFA. Nothing contained in this Agreement may be deemed to give Licensee any right, title or interest in any LOFA Marks. Subject to notice from LOFA in writing which modifies or cancels such license at LOFA’s sole discretion, during the continuance of this Agreement, LOFA hereby grants Licensee a nonexclusive, revocable license to the LOFA Marks for normal advertising, marketing and promotion of Licensee Devices according to guidelines that LOFA may issue from time to time. Licensee must act consistently with LOFA’s ownership of the LOFA Marks and may not use LOFA Marks in a disparaging manner. Licensee agrees to use correct trademark notices on advertisements, sales literature, dealer materials, press releases and other marketing materials, which use or display LOFA Marks. Licensee agrees to provide samples of all Licensee’s marketing materials and Licensee Devices containing LOFA Marks to LOFA for prior approval. If LOFA rejects any of Licensee’s use of LOFA Marks, then the parties may cooperate reasonably in order modify such materials for approval prior to release or use by Licensee. To the extent that LOFA withdraws any portion of the trademark license granted in this subsection, Licensee’s obligations under this Section, above, will also terminate if the rights necessary to comply with such obligation are withdrawn.
- Interpretation of This Agreement. This Agreement is the entire Agreement to date between the parties regarding the Materials and supersedes any such prior agreement or communication. Any subsequent waiver or modification of this Agreement, or any part, shall only be effective if reduced to writing and signed by both parties. No delay or failure to enforce any right under this Agreement will be considered a waiver of a party’s rights thereafter to enforce each and every right and provision of this Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision will be severed from this Agreement and the other provisions will remain in full force and effect. This Agreement will be binding upon, and inure to the benefit of, the successors, heirs and assigns of the parties. Neither Licensee nor Licensee employees, consultants, contractors or agents are agents, employees or joint-venturers of LOFA, nor do they have any authority to bind LOFA by contract or otherwise to any obligation. Licensee agrees not to make any statements that state or imply that LOFA certifies or guarantees Licensee Devices or that Licensee Devices are warranted, tested or approved by LOFA. Dates and times by which either party is required to render performance will be postponed automatically to the extent and for the period of time that such party is prevented from meeting them by reason of any cause beyond its reasonable control. Unless otherwise specifically expressed in this Agreement, the specific business terms and negotiated customisations to this Agreement will be considered confidential (“Business Terms”), and neither party my disclose such information to third parties except as follows: (a) to employees, advisors, financing parties or contractors who are under an obligation of confidentiality to the extent reasonably necessary to conduct business; (b) to the extent that such Business Terms become publicly known through no fault of the parties; (c) to the extent required to comply with any valid law, regulation, statute, or order so long as the non-disclosing party receives reasonable advance notice of such potential disclosure; and (d) to the extent required to enforce, establish, or interpret any right or duty at law or equity with respect to this Agreement.
- All notices hereunder will be in writing and must be duly given if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, to the respective addresses of the parties appearing in this Agreement. Any notice given will be deemed to be received: (i) on the date which it is delivered if delivered personally, (ii) or, if mailed, on the fifth business day next following the mailing thereof. Either party may change its address for notices by giving notice of such change as required in this clause.
- This Agreement, the license rights granted hereunder and the Materials, or any part thereof, may not be assigned or transferred by Licensee, including by operation of law (“Transfer”), without the prior written consent of LOFA. Any such transfer without the prior written consent of LOFA will be ineffective. In any case, any such Transfer absent LOFA’s written permission will immediately and automatically terminate this Agreement without further action by LOFA. A change of control of Licensee, whether by sale or issuance of shares (except in the ordinary course of raising capital by public offering), or merger, or otherwise, will be deemed to be an assignment.
- The laws in force in the State of Georgia will govern this Agreement; the parties hereby consent to jurisdiction and venue in the courts of Georgia.
- The provisions in Sections – Licensee’s Indemnification, – Ownership, Protection, –Fees – Limited Warranty, – Warranty Disclaimer, -Indemnification, -Term and Termination, Limitation of Liability, – Interpretation of Agreement, and -General (inclusive), remain in force and effect after the termination of this Agreement.
Special License Terms
THE LICENSE GRANTED HEREUNDER IS RESTRICTED SOLELY TO THE OPERATION OF THE LOFA HARDWARE AND FOR NO OTHER PURPOSE. NO SUCH LICENSEE DEVICE INCORPORATING ANY OF THE MATERIALS MAY BE DISTRIBUTED, LICENSED, SOLD, RENTED, OR OTHERWISE PROVIDED TO THIRD PARTIES WITHOUT LOFA’S EXPRESS WRITTEN PERMISSION.
Licensee Information not required
Exhibit B – PRODUCTS/DELIVERABLES
Licensed Product Information
Software codes with product numeric values equal to 001-xxxx-yyyy-zzz; where xxxx, yyyy, and zzz equal (0000…9999).
Software codes qualified under the same numeric regimen detailed above or including the verbal description of “CANp lus™” products and/or the “CANp lus Suite” of products.
Maintenance and Technical
.NET Framework 3.5
Windows® XP, Windows Vista (32/64-bit), Windows 7 (32/64-bit)