This Source Code License and Confidentiality
Agreement ("Agreement") is made (on the date of download or other access) by and
between ("Licensee") and Plucom Technology.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS.
1.1. "Source Code" shall mean (i) all source code provided or made available to
Licensee pursuant to this Agreement and pursuant to Licensee purchasing prior
valid Plucom Technology license(s) and prior agreement to the Plucom Technology
End User License Agreement ("EULA") when order is placed, and (ii) such source
code's structure and organization, and (iii) all related documentation,
developer's notes and database schema, if any, provided or made available to
Licensee pursuant to this Agreement, and (iv) any copies (both electronic and
paper) made thereof by or on behalf of Licensee.
1.2. "Compiled Application" means the executable program run from unmodified
Source Code.
2. LICENSEE RIGHTS AND RESTRICTIONS.
2.1. Grant of License.
2.1.1. Subject to Licensee's strict compliance with the terms and conditions of
this Agreement, Plucom Technology hereby grants to Licensee (i) a non-exclusive,
non-transferable, limited license under Plucom Technology copyrights in the
Source Code to internally reproduce the Source Code and create derivative works
based upon the Source Code for the sole purposes of providing maintenance
support or developing new functionalities, features, procedures, routines, or
customizations that are not available in the Compiled Application
("Enhancements"), (ii) a non-exclusive, non-transferable, limited license to use
the Enhancement for internal purposes in connection with Licensee's use of the
Plucom Technology Software ("Software"), and (iii) a non-exclusive,
non-transferable, limited license to sublicense the use of the Enhancement to
Licensee's clients who are also properly licensed to use the Plucom Technology
Software ("Permitted Clients").
2.1.2. Licensee understands and acknowledges that Plucom Technology may develop
and/or market for itself the same or similar Enhancements, and may grant a third
person or entity the right to develop and/or market the same or similar
Enhancements, and that Plucom Technology has made no promises to the contrary.
2.2. Restrictions and Requirements of Use.
2.2.1. Except as expressly provided in Section 2.1, no other license or right in
the Source Code is granted to Licensee under this Agreement directly or by
implication or otherwise. Without limiting the generality of the foregoing and
notwithstanding anything to the contrary in this Agreement, Licensee may not:
2.2.1.1. Remove any copyright notice, proprietary information notices, or other
notice (collectively, "Copyright Notice") provided by Plucom Technology,
including, without limitation, any Copyright Notice contained in the Source Code
provided by Plucom Technology;
2.2.1.2. Assign, sublicense, lease, or in any other way transfer or disclose the
Source Code to any third party, including, without limitation, (i) to any
Permitted Clients, (ii) to independent contractors or developers (Third
Parties), or (iii) as part of the Enhancements, unless specifically authorized
in writing, by having each Third Party execute the Subcontractor Addendum to
this agreement.
2.2.1.3. Utilize the Source Code in a manner to prepare, draft, or assist third
parties in preparing or drafting software that is similar to the Software
subject to this License that is intended for sale, license, or distribution to
others (whether that distribution be for profit or free) in a manner that would
compete directly or indirectly with Plucom Technology’s products; or
2.2.1.4. Reproduce or use any part of the Source Code, Compiled Application, or
use the Software except as provided in this Agreement; or
2.2.1.5. Reproduce, modify, decompile, reverse engineer, disassemble, or
otherwise reduce the Software to a human-readable form.
2.2.2. The restrictions set forth in Section 2.2.1 shall apply equally to
attempts to perform the restricted activities, regardless of whether or not any
such attempt is successful.
2.3. Confidentiality.
2.3.1. Licensee agrees and acknowledges that the Source Code is: (i) proprietary
to Plucom Technology; (ii) is of significant value to Plucom Technology; (iii)
is not publicly available; (iv) contains trade secrets of Plucom Technology; and
(v) constitutes the confidential information of Plucom Technology. Licensee
shall comply with the following restrictions on use of the Source Code and shall
maintain the Source Code in accordance with the following security procedures:
2.3.1.1. Licensee shall use commercially reasonable measures to preserve the
security and confidentiality of the Source Code, including, without limitation,
securing the network, server, hard drives, and other media on which the Source
Code is stored or maintained.
2.3.1.2. Licensee shall limit access to the Source Code to its employees who
have a need to access the Source Code for the purposes of exercising Licensee's
rights under this Agreement (each, an "Authorized Person") and to its
independent contractors (and developers (Third Parties), if any, who are
approved by Plucom Technology pursuant to Section 2.2.1.2 (each, an "Authorized
Independent Contractor"). Without limiting the foregoing, no Authorized Person
or Authorized Independent Contractor may have access to the Source Code unless
and until: (i) he or she has been apprised of and acknowledges the confidential
and proprietary nature of the Source Code; (ii) has been trained with respect to
the procedures designed to preserve its confidentiality; (iii) and is subject to
a binding and enforceable obligation neither to use the Source Code (other than
for purposes expressly permitted by this Agreement) nor to disclose such Source
Code to any person or entity other than a person similarly authorized to access
the Source Code.
2.3.1.3. Licensee shall conduct periodic reviews to ensure compliance with the
foregoing security requirements. Plucom Technology shall have the right to
conduct a review of Licensee on Licensee's premises to ensure compliance with
the foregoing security restrictions, including an inspection the records and
agreement maintained by Licensee pursuant to subsection 2.3.1.3 above, provided
that Plucom Technology provides at least three (3) business days prior written
notice.
2.3.2. Licensee shall be jointly and severally responsible for any violation of
any of the confidentiality obligations set forth in this Agreement by any of its
employees, contractors and third parties acting on its behalf.
2.4. Injunctive Relief. Licensee acknowledges and agrees that Plucom Technology
will suffer irreparable damage in the event of a breach by Licensee of the terms
of Sections 2.3 or 2.4 of this Agreement and that Plucom Technology will be
entitled to injunctive relief (without the necessity of posting a bond or
proving actual damages) in the event of any such breach.
2.5. Indemnification. Licensee hereby agrees to indemnify, defend and hold
harmless Plucom Technology and its directors, officers, shareholders, partners,
affiliates, employees, representatives and agents from and against any loss,
fines, fees, settlements, judgments, costs, expenses (including, without
limitation, reasonable attorneys' fees, court costs, and administrative fees),
and any other liability arising out of or related to any claim, demand, or cause
of action asserted by any third party arising out of or related to Licensee's
use of the Enhancements.
3. LICENSE FEES
3.1. License Fees. Licensee will pay to Plucom Technology the license fee(s) for
source as follows [per]: (a) The amount paid when Licensee placed their "with
source" or "add source" order on the Plucom Technology website, or (b) in the
times and amounts set forth in Exhibit A ("License Fees") by prior special
agreement with Plucom Technology.
4. INTELLECTUAL PROPERTY.
4.1. Existing Intellectual Property. As between the parties, Plucom Technology
is and shall be the exclusive owner of all right, title and interest in and to
(i) the Software and the Source Code, and (ii) all patent, copyright, trademark,
trade secret, and any and all other protectable intellectual property and
proprietary rights both now and in the future, whether or not registered or
perfected (but to the extent existing, all registrations, applications,
renewals, extensions, continuations, divisions or reissues hereof now or
hereafter in force), and whether arising by operation of law, contract, or
otherwise (collectively, "Intellectual Property Rights") in and to the foregoing
(the "Existing Intellectual Property"). The Software and Source Code are
protected by copyright and other applicable laws, including without limitation
by Nigeria Copyright Law, international treaty provisions and applicable laws in
the country in which it is being used. Licensee may not copy or use the Software
or Source Code except as permitted herein. Licensee agrees not to modify, adapt
or translate the Software or Source Code except as permitted herein. Any
information or documentation supplied by Plucom Technology or otherwise obtained
by Licensee in connection with or as a result of this Agreement may only be used
by Licensee for the purpose described herein and may not be disclosed to any
third party (except as permitted herein) or used to create any software which is
substantially similar to the Software.
4.2. New Intellectual Property. As between the Parties, any right, title and
interest to any Enhancements, updates, and modifications shall be owned by the
Party who created them; with respect to Enhancements, updates, and
modifications, that are jointly created, they shall be owned by Plucom
Technology and Licensee shall be granted a license to use those jointly created
Enhancements, updates, and modifications in accordance with this Agreement and
the prior agreed EULA. In no event shall any rights in the Plucom Technology
Source Code vest or otherwise transfer to Licensee and Licensee acknowledges
that any ownership of Enhancements, updates, and modifications shall be limited
to the Enhancements, updates, and modifications and not the underlying Plucom
Technology Source Code.
5. WARRANTY, WARRANTY DISCLAIMER, AND LIMITATION OF LIABILITY.
5.1. Mutual Representations. Each party represents and warrants (i) that such
party is duly organized, validly existing and in good standing under the laws of
its jurisdiction of incorporation; (ii) that such party has the legal right and
authority to enter into and perform its obligations under this Agreement; (iii)
that, to the best of its knowledge, the execution and performance of this
Agreement will not conflict with or violate any provision of any law having
applicability to such party; and (iv) that this Agreement, when executed and
delivered, will constitute a valid and binding obligation of such party and will
be enforceable against such party in accordance with its terms.
5.2. Warranty Disclaimer. Except as specifically set forth in Section 5.1 above,
no further warranty of any kind is being provided by Plucom Technology,
including, without limitation, any warranty that the Software and Source Code
shall be free from defects in design, material or workmanship. LICENSEE ASSUMES
TOTAL RESPONSIBILITY FOR THE USE OF THE SOFTWARE AND SOURCE CODE, AND THE
SOFTWARE AND SOURCE CODE ARE PROVIDED ON AN "AS-IS" BASIS. TO THE MAXIMUM EXTENT
PERMITTED BY LAW AND EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 5.1, THE
SOFTWARE AND SOURCE CODE ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, AND WHETHER ARISING UNDER LAW OR FROM COURSE OF PERFORMANCE,
COURSE OF DEALING, OR USAGE OF TRADE (COLLECTIVELY, "DISCLAIMED WARRANTIES"),
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE
HEREBY EXPRESSLY EXCLUDED BY PLUCOM TECHNOLOGY AND FOREVER WAIVED BY LICENSEE.
NO ADVICE OR INFORMATION GIVEN BY PLUCOM TECHNOLOGY, ITS AFFILIATES OR ITS
CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY OR OBLIGATION
OF PLUCOM TECHNOLOGY. In the event that any of the Disclaimed Warranties cannot
be disclaimed or waived under applicable law, Licensee's sole and exclusive
remedy for breach of such Disclaimed Warranty will be, at Plucom Technology’s
sole discretion, either (i) the replacement of the Source Code, at no additional
cost to Licensee, or (ii) the refund of any License Fees actually paid by
Licensee under this Agreement.
5.3. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE
LAW, PLUCOM TECHNOLOGY SHALL NOT BE LIABLE TO LICENSEE, AND LICENSEE COVENANTS
THAT IT WILL NOT ASSERT A CLAIM AGAINST PLUCOM TECHNOLOGY, UNDER ANY LEGAL
THEORY, WHETHER IN AN ACTION BASED ON A CONTRACT, NEGLIGENCE, TORT, STRICT
LIABILITY, OR OTHERWISE PROVIDED BY STATUTE OR LAW, (i) FOR ANY INCIDENTAL,
SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR STATUTORY DAMAGES, OR ANY DAMAGES
RESULTING FROM LOST PROFITS, INTERRUPTION OF BUSINESS, OR LOSS OF GOODWILL, EVEN
IF PLUCOM TECHNOLOGY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR
(ii) FOR DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT IN AN AMOUNT THAT
EXCEEDS THE LICENSE FEES ACTUALLY PAID BY LICENSEE UNDER THIS AGREEMENT.
LICENSEE HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE
REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.
5.4. Basis of Bargain. The parties hereby acknowledge and agree that the
warranty disclaimers and limitation of liability provisions set forth above have
been negotiated and are fundamental elements of the basis of this Agreement, and
Plucom Technology would not be able to provide the licenses granted herein at
the price and on the other terms and conditions currently offered without such
limitations. The parties further agree that such provisions will inure to the
benefit of the other party's successors and permitted assigns.
6. TERM AND TERMINATION.
6.1. Term. The term of this Agreement and the licenses granted herein shall
begin on the effective date of this Agreement and shall continue as long as
Licensee is using Plucom Technology software or until the earlier termination of
this Agreement pursuant to the provisions set forth herein.
6.2. Event of Default. Each of the following shall constitute an event of
default ("Event of Default") under this Agreement: (a) Licensee fails to pay any
amount due under this Agreement within thirty (30) days of the date such amount
is due; (b) an uncured material breach by either party of this Agreement,
provided that the non-breaching party has notified the breaching party of the
Event of Default and afforded the breaching party at least thirty (30) days to
cure such breach; and (c) Licensee is acquired by or merges with, or begins
discussions to become acquired by or merged with, a competitor to Plucom
Technology. A competitor is defined as any company selling products defined in
the e-commerce space, or "shopping cart" space to customers, as standalone
products, or as integrated offering with a service or other product.
6.3. Termination upon Event of Default. If an Event of Default occurs, the
non-breaching party (or Plucom Technology in the event of an Event of Default
pursuant to Sections 6.2(a) or (c)) may, in its sole discretion, terminate this
Agreement. In such event, the non-terminating party shall pay to the terminating
party all costs and expenses (including reasonable legal fees and costs and fees
of collection agencies, if any) incurred by the terminating party in connection
with such termination.
6.4. Effect of Termination. Upon termination or expiration of this Agreement for
any reason whatsoever, Licensee shall immediately: (i) cease all use of the
Source Code; and (ii) within ten (10) days, return or destroy (and have an
authorized officer certify such destruction) the Source Code, including without
limitation, removing all copies of Source Code from Licensee computers and
storage media. In addition to the foregoing, Licensee agrees that it shall not,
following termination or expiration of this Agreement, act in any way to damage
the reputation or goodwill of Plucom Technology, the Software, any Enhancement,
or any other product or software offered by Plucom Technology.
7. MISCELLANEOUS.
7.1. Assignment. Licensee may not assign this Agreement or any of its rights or
obligations hereunder without the prior written consent of Plucom Technology,
such consent to be given at its sole discretion. Any attempted assignment
without such prior written consent shall be void. Plucom Technology may assign
all or part of this Agreement immediately, without the prior written consent of
Licensee (i) to any successor in interest to Plucom Technology who assumes
responsibility for Plucom Technology’ obligations hereunder; or (ii) if
necessary to satisfy the rules, regulations and/or orders of any federal, state
or local governmental agency or body.
7.2. Dispute Resolution. Any dispute relating to this Agreement shall be
submitted for binding arbitration under the Commercial Arbitration Rules of the
Nigeria Arbitration Association and its Optional Procedures for Large, Complex
Commercial Disputes. The arbitration shall be heard and determined by a panel of
three (3) arbitrators selected by the NAA, and each such arbitrator shall be an
attorney having experience and familiarity with information technology disputes.
Judgment on any award entered therein may be entered in any court of competent
jurisdiction. The venue for any such arbitration shall be in Lagos, Nigeria. In
all cases, each party shall bear its own costs relating to such arbitration, and
the parties shall equally share the arbitrators' fees unless provided otherwise
in this Agreement or otherwise determined by the arbitrator, and the arbitration
and all related proceedings and discovery shall take place pursuant to a
protective order entered by the arbitrators that adequately protects the
confidential nature of the parties' proprietary and confidential information. In
no event shall any arbitration award provide a remedy beyond those permitted
under this Agreement, and any award providing a remedy beyond those permitted
under this Agreement shall not be confirmed, no presumption of validity shall
attach, and such award shall be vacated. This agreement shall be governed by and
construed in accordance with the laws of the state of Lagos, excluding its
conflicts of law’s provisions.
7.3. Severability. In the event that any portion of this Agreement is held to be
unenforceable, the unenforceable portion shall be amended to reflect, to the
greatest extent permitted under applicable law, the original intent of the
parties, and the remainder of the provisions shall remain in full force and
effect.
7.4. Waiver. Either party's failure to insist upon strict performance of any
provision of this Agreement shall not be construed as a waiver of that or any
other of its rights hereunder at any later date or time.
7.5. Force Majeure. With the exception of any payment obligations, neither party
shall be liable for failing to perform its obligations hereunder (other than
payment obligations) where delayed or hindered by war, riots, embargoes, strikes
or acts of its vendors or suppliers, accidents, acts of God, or any other event
beyond its reasonable control.
7.6. Notices. All notices including notices of address changes contemplated
hereunder shall be deemed received on the third day after mailing if sent by
mail, or immediately if sent by facsimile. Notices shall be sent to the
addresses on the signature page hereof.
7.7. Survival. All terms and provisions of this Agreement that should by their
nature survive the termination shall so survive.
7.8. Counterparts. This Agreement may be executed in separate counterparts
including facsimile copies, each of which shall be deemed an original, and all
of which shall be deemed one and the same instrument and legally binding upon
the parties.
7.9. Entire Agreement. Each Exhibit is hereby incorporated by reference into
this Agreement as if fully rewritten herein. This Agreement, including any
Exhibits attached hereto and made part hereof, constitutes the entire agreement
between Licensee and Plucom Technology with respect to the subject matter
hereof. This Agreement supersedes any prior agreements, representations, or
dealings between the parties.
7.10. Amendment. Plucom Technology reserves the right at any time to modify this
Agreement without notice and to impose new or additional terms or conditions on
your use of your use of the Software. Such modifications and additional terms
and conditions will be effective immediately and incorporated into this
Agreement. Your continued use of the Software will be deemed acceptance thereof.
Updated terms and conditions may be found at
http://www.plucomtechnology.com/term-of-license.aspx.
7.11. Construction. The provisions of this Agreement are the product of
discussion and negotiation by the parties, and no provision may be construed
against either party by reason of its drafting of such provision.
7.12. Headings. The section headings herein are for convenience and reference
purposes only and shall not serve as a basis for construction or interpretation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by a duly
authorized representative effective as of the date set forth at the top of this
Agreement.
Release of Source Code Requires Prior Fully Paid Valid Plucom Technology "With
Source" License
Release of Source Code Requires Adherence to Plucom Technology software End User
License Agreement (EULA)
Release of source code does NOT allow Licensee to use source code except in
conjunction with those Plucom Technology licenses. Release of source code does
NOT release Licensee from our requirement of having a valid, paid in full,
license for each Plucom Technology installed, or used, by Licensee per the
Plucom Technology EULA. The terms of this Agreement augment those terms and
conditions set forth in the EULA. The EULA was accepted by Licensee when
purchasing the Plucom Technology licenses.
Release of Source Code Does Not Entitle Licensee to Updates Beyond Plucom
Technology License Terms
Licensee is entitled to source code for only those versions of Plucom Technology
software to which they would normally be entitled based upon their initial
purchase and any additional support or upgrade Plucom Technology software
license purchases made by Licensee.
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