Terms and Conditions
In exchange for payment of the licensing fees as paid through the purchasing process, and upon delivery of a valid license key by Qoppa to Licensee, Qoppa grants to Licensee a non-assignable, non-transferable, and Non-Exclusive license to use the following software in object code and all updates and revisions thereof supplied by Qoppa during the term of this hereof and all permitted Copies and Products of the foregoing (hereafter, “Licensed Software” or “Software”):
In accordance with the following conditions:
1.1. Binary Code – The Licensed Software in compiled binary code form.
1.2. Copy – The medium on which information is fixed on a temporary or permanent basis and from which it can be perceived, reproduced, used, or communicated, either directly or with the aid of a machine or device.
1.3. Distributor – A dealer or distributor in the business of reselling or sublicensing Product, without right to use or Modify any part of Product.
1.4. Licensed Documentation – All documentation, other than the Licensed Software, related to the Licensed Software supplied by Qoppa hereunder, whether in printed or electronic form.
1.5. Licensed Product – Collectively the Licensed Software and Licensed Documentation.
1.6. Licensed Software (or Software) – Has the meaning set forth in the preamble above.
1.7. Modification – Deleting code from, adding code to, or altering the code in the Licensed Software.
1.8. Modify – To create or engage in creating a Modification.
1.9. Non-exclusive License –A license that does not preclude the licensor from transferring to other licensees the same information, informational rights, or contractual rights within the same scope, including consignment of a Copy.
1.10. Party: Refers to either Qoppa or Licensee.
Parties: Refers to Qoppa and Licensee collectively.
1.11. Host Application – A computer software application which has been or will be developed by Licensee and which incorporates portions of the Binary Code.
1.12. Redistributable Files – Those files that include Binary Code and other files that need to be distributed along with the Licensed Software necessary to implement the functions provided by the Licensed Software.
1.13. Significant Value-Added – Where the Host Application within which Software is integrated constitutes the predominance of the functionality offered to the Sub-licensee.
1.14. Source Code – The mnemonic, high-level statement versions of the Software written in the source language used by programmers.
1.15. Sub-licensee – Any person or entity who is not a Distributor to whom any Product is provided, integrated into the Host Application, without right to sub-license, assign, or otherwise transfer Product to any other person or entity.
1.16. Website – A collection of web pages, images, videos and other digital assets hosted on a particular domain or sub-domain and accessible using the HTTP protocol through the World Wide Web or a Local Area Network.
2. GRANT OF LICENSE
2.1. Limited Grant.
2.1.1. Subject to the payment of the License Fees as herein provided, Qoppa hereby grants to Licensee, and Licensee hereby accepts, a personal, non-exclusive and non-transferable license for the limited use of the Licensed Software, and the Licensed Documentation in support of the use of the Licensed Software, during the term hereof only in accordance with the all the terms of this agreement.
2.1.2. A separate license shall be required, together with the payment of additional license fees, to use the Software upon any term or condition that is not set forth in this agreement.
2.2. Limited Grant of Reproduction and Modification.
2.2.1. Licensee may reproduce and distribute the Licensed Software in Binary Code form only; but all Copies of the Licensed Software and Products, in whole or in part, shall contain all of Qoppa’s restrictive and proprietary notices as they appear on the Copies of Licensed Software provided by Qoppa. In no event may Licensee distribute, in whole or in part, the Licensed Documentation.
2.2.2. Licensee may merge the Licensed Software into existing or new software only in accordance with this Agreement. Upon any termination, cancellation or expiration hereof or of any license or sub-license granted hereunder, Licensee shall remove the Licensed Software and all portions thereof from the Host Application and shall have no right thereafter to use the Licensed Software, or any portion thereof.
2.3. Limited Grant to Distribute Software. Licensee and Distributors may not distribute the Licensed Software separately from any Host Application. In addition to Binary Code, the Host Application must contain Significant Value-Added, which must be application software written or developed with Source Code. Without limiting the generality of the foregoing:
2.3.1. The Significant Value-Added may not be the bundling of Licensed Software with any other product; and
2.3.2. The functionality of the Licensed Software shall only be accessible by the functionality of the Host Application in which it is included.
2.4. Integration. Licensee may integrate the Binary Code into a single Host Application or a single Website.
2.5. Grant of Duplication and Distribution License. The Licensed Software includes certain runtime libraries and binary files intended for duplication and distribution by Licensee. Qoppa Software grants Licensee the non-exclusive license to duplicate the Redistributable Files and to distribute them solely in conjunction with the Host Application or Website developed by Licensee that integrates the Licensed Software. The foregoing license is subject to the conditions set forth in Schedule 2.5 of Exhibit A.
2.6. Limitations on Preceding Grants. Licensee’s rights in the Licensed Software are limited to the right of use and Copy as expressly set forth in this Agreement. Licensee will not otherwise use or Copy the Software.
2.7. Support. Licensee shall be solely responsible for the selection, installation and use of the Licensed Product. Qoppa shall provide Licensee with technical support and services under the terms and conditions of a separate agreement and at Qoppa’s then current charges therefore; provided, however, Qoppa will support the Licensed Software and fix any defects within the Licensed Software in a timely manner and deliver such fixes to Licensee for a period of 3 months.
3. PROPRIETARY RIGHTS AND CONFIDENTIALITY
3.1. Trade Secrecy. Licensee agrees that the Licensed Software contains commercially valuable proprietary products of Qoppa which have been secretly developed by Qoppa, the design and development of which have involved expenditure of substantial amounts of money and the use of skilled development experts over substantial periods of time. The Licensed Software, Products and any portions or Copies thereof shall at all times remain the exclusive property of Qoppa and Licensee shall have no right, title or interest therein, except for the License expressly granted in this agreement.
3.2. Confidentiality. Licensee agrees that the Licensed Software contains confidential information of Qoppa and agrees not to disclose or make available the Licensed Software or any portion thereof to third parties, other than to Sublicensees and Distributors as provided herein, without Qoppa’s prior written consent. Licensee also agrees not to Copy, translate, Modify, create derivative works from, reverse engineer, decompile, encumber, or otherwise use the Software or permit others to do any of the foregoing, except as specifically authorized under this Agreement.
4. TERM AND TERMINATION
4.1. Term. This Agreement shall be effective from the latest date of signing of this Agreement by Qoppa or Licensee, “the date of execution”, as the case may be, and shall remain in force until terminated as provided herein.
4.2. Termination. Either Party may terminate this Agreement in the event of a material breach that remains uncured for one month after written notice is given. Upon termination of the License for any reason by either Party, Licensee shall promptly, and at its own expense: (i) Discontinue all use of Licensed Software; (ii) remove all parts of the Licensed Software from the Host Application; (iii) purge Software or cause it to be purged from all human and machine readable media (or other memory devices); (iv) return to Qoppa the original and all Copies of the Licensed Software in whole or in part, in any form, whether partial or complete, and whether or not Modified or merged into other software; and (v) warrant to Qoppa in writing, within one month of termination, that it has complied with the provision of this Paragraph 4.2. Termination of this Agreement will not terminate any sub-licenses previously granted, so long as a Sub-licensee complies with the applicable terms of this Agreement.
5. PROTECTION OF LICENSED PRODUCT AS A TRADE SECRET.
5.1. Licensee acknowledges and agrees that the Licensed Product and all Copies and Products thereof are Qoppa’s exclusive property and constitute a valuable trade secret of Qoppa. Licensee may not disclose or make available to third parties the Licensed Product or any portion thereof without Qoppa’s prior written consent.
5.2. Upon any termination, cancellation, or expiration hereof, Licensee shall immediately return the Licensed Product and all Copies and Products thereof to Qoppa or destroy the same and submit evidence thereof to Qoppa.
6. DISCLAIMER OF WARRANTY AND LIMITATIONS OF LIABILITIES
6.1. Disclaimer of Warranty. THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, AND QOPPA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, OR ITS USE AND OPERATION ALONE OR IN COMBINATION WITH ANY OTHER SOFTWARE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
6.2. Limitation of Liability. LICENSEE AGREES THAT IN NO EVENT SHALL QOPPA BE LIABLE TO LICENSEE OR ANY OTHER PERSON CLAIMING DAMAGES AS A RESULT OF THE USE OF ANY PRODUCT OR SOFTWARE FOR ANY DAMAGES WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSEE AGREES THAT QOPPA’S LIABILITY FOR DAMAGES, IF ANY, INCLUDING, BUT NOT LIMITED TO LIABILITY ARISING OUT OF CONTRACT, NEGLIGENCE, AND STRICT LIABILITY IN TORT SHALL NOT EXCEED THE CHARGES PAID BY LICENSEE TO QOPPA UNDER THIS AGREEMENT.
6.3. Incidental and Consequential Damages. IN NO EVENT SHALL QOPPA BE LIABLE TO LICENSEE, SUBLICENSEE OR OTHER THIRD PARTY FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ALLEGED OR THE FORESEEABILITY OF SUCH DAMAGES, EVEN IF QOPPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. EXPORT RESTRICTIONS
7.1. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE SOFTWARE, APPLICATION SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE OR APPLICATION SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, LICENSEE AND SUBLICENSEES MAY NOT EXPORT, REEXPORT, DIRECTLY OR INDIRECTLY, ANY SOFTWARE OR APPLICATION SOFTWARE OR INFORMATION PERTAINING THERETO TO ANY COUNTRY FOR WHICH THE UNITED STATES GOVERNMENT, OR ANY AGENCY THEREOF, REQUIRES AN EXPORT LICENSE OR OTHER GOVERNMENTAL APPROVAL AT THE TIME OF EXPORT OR REEXPORT WITHOUT FIRST OBTAINING THE REQUIRED LICENSE OR APPROVAL. LICENSEE HOLDS QOPPA HARMLESS FROM ANY BREACH OF SECTION 7.
8.1. Indemnification. Licensee shall indemnify, defend and hold harmless Qoppa, its affiliates and each of their respective directors, officers, employees, agents, successors and permitted assigns from and against all actions, suits, losses, liabilities, damages, costs and expenses, including reasonable attorney and expert witness fees, arising from or which are in any way related to: (i) any act or omission of Licensee or its employees, agents or contractors, (ii) any breach of this Agreement; or (iii) any claim that the Host Application infringes a copyright, United States patent, trade secret, or other intellectual property rights of a third party.
9.1. Qoppa shall have the right, at its own expense and upon reasonable written notice to Licensee, to periodically inspect Licensee’s premises and such documents as it may reasonably require, for the exclusive purpose of verifying Licensee’s compliance with its Software licensing obligations under this Agreement.
10. ADOBE COLOR PROFILES
10.1. Where the distribution of the Software contains some files, hereby referred to collectively as Adobe Color Profiles, that are owned by Adobe Systems Incorporated. Licensee may choose to distribute this files, royalty free, along with the Host Application and the Licensed Software only in accordance with the following conditions:
10.1.1. Licensee agrees that these files are provided on an “AS IS” basis. Adobe and / or Qoppa make no representation as to the adequacy of the Software for any particular purpose or to reproduce any particular result. Adobe and / or Qoppa shall not be liable for loss or damage arising from the distribution or use of the Adobe Color Profiles.
10.1.2. In no event shall Adobe and / or Qoppa be liable to Licensee or Licensee’s customers for any damages, claims or costs whatsoever or any consequential, indirect, incidental damages, or any lost profits or lost savings, even if an Adobe or Qoppa representative has been advised of the possibility of such loss, damages, claims or costs or for any claim by any third party.
10.2. The Adobe Color Profiles in this distribution can also be obtained from Adobe Systems Incorporated by going to its website at www.adobe.com.
11.1. Entire Agreement and Amendment. This Agreement is a binding agreement and constitutes the complete, final and exclusive statement of the terms of the agreement between the parties with respect to the subject matter thereof and supersedes any and all other agreements, written or oral, or contemporaneous, with respect thereto. This Agreement cannot be modified except by a written instrument signed by both parties.
11.2. Severability. If any provision of this Agreement or the application thereof to any circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law.
11.3. Waiver. A waiver of a breach or default under this Agreement shall not be a waiver of any other or subsequent breach or default. The failure or delay in enforcing compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition unless such term or condition is expressly waived in writing.
11.4. Assignment. Neither party may assign, transfer, delegate, or pledge this Agreement and/or any of its obligations hereunder to any third party without the prior written consent of the other party. Notwithstanding the foregoing, either party may, without the consent of the other party and at no additional charge, assign, transfer, delegate, or pledge this Agreement and/or any of its rights or obligations hereunder in the event of a consolidation, merger or sale of substantially all of its assets or substantially all of its outstanding stock, provided that the assignee or successor in interest assumes the obligations of the party hereunder. Subject to the provisions set forth above in this Section 11.4, this Agreement, and the covenants and agreements herein contained, shall be inure to the benefit of and be binding on the parties hereto and their respective permitted successors and assigns.
11.5. Representations. Each Party represents that it has full power and authority to enter into and perform this Agreement, and that the person signing this Agreement on its behalf has been duly authorized and empowered to execute this Agreement. Licensee represents that its compliance with the terms and conditions of this Agreement shall not violate any federal, state or local laws, regulations or ordinances or conflict with any third party agreements.
11.6. Agency. The Parties are separate and independent legal entities. Nothing in this Agreement shall constitute a partnership or make either Party the agent or representative of the other. Neither Party has the authority to bind the other nor to incur any liability on behalf of the other, nor to direct the employees of the other.
11.7. Government use. use, duplication or disclosure by the United States Government is subject to the restrictions set forth in FAR 52.227-19, DFARS 227.7202, or similar regulations set forth in the NASA FAR Supplement, as applicable, or any successor regulations. Contractor/Manufacturer is Qoppa Software, LLC, 1440 Dutch Valley Pl, Suite 1200, Atlanta, GA 30324.
11.8. Injunctive Relief. Licensee acknowledges that Qoppa shall be entitled to equitable relief including an injunction restraining Licensee from the performance of acts which constitute a breach of this Agreement.
11.9. Notices. Any notice or other communication given by one Party to the other Party under this Agreement will be deemed properly made if given in writing and delivered in person, sent via facsimile or overnight courier or mailed, properly addressed and stamped with the required postage, to the address of record for each party.
11.10. Governing Law. This Agreement shall be governed by laws of the state of Georgia, except for its provisions on conflicts of law. The Parties agree that any action or proceeding arising out of or related in any way to this Agreement shall be brought in the Superior Court of Fulton County, Georgia and irrevocably waive, to the fullest extent permitted by law, any objection either Party may now or hereafter have to the laying of venue in such court and any claim that any such court is an inconvenient forum.
11.11. Survival. Notwithstanding the termination of this Agreement, those rights and obligations which by their nature and context are intended to survive such termination shall survive, including, without limitation, the provisions relating to confidentiality, limitations of liability, warranty exclusions, indemnification, and the making of all payments due under this Agreement.
11.12. Contract Interpretation. This Agreement shall not be strictly construed against the drafter, but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the parties’ intentions at the time this Agreement is entered into.
Schedule 2.5 – Limitation on Duplication and Distribution License
- The Licensed Software may be distributed to a maximum of _____ unique end users.