Exhibit 10.39
SOFTWARE LICENSE AGREEMENT
AVID TECHNOLOGY, INC. ("AVID") OR ITS AUTHORIZED DISTRIBUTOR OR RESELLER AS THE
CASE MAY BE (AVID OR SUCH DISTRIBUTOR OR RESELLER IS SOMETIMES HEREINAFTER
REFERRED TO AS "LICENSOR") IS WILLING TO LICENSE THIS SOFTWARE TO YOU, THE
LICENSEE, ONLY UPON THE CONDITION THAT YOU ACCEPT THE TERMS CONTAINED IN THIS
LICENSE. BY CLICKING ON THE "ACCEPT" BUTTON, YOU ARE CONSENTING TO BE BOUND BY
ALL THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO
ALL THESE TERMS, THEN LICENSOR IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, IN
WHICH EVENT YOU SHOULD CLICK THE "DO NOT ACCEPT" BUTTON AND THE INSTALLATION
WILL NOT PROCEED. IF YOU DO NOT ACCEPT YOU MAY RETURN THE SOFTWARE WITHIN SEVEN
DAYS OF THE DATE OF PURCHASE TO THE PLACE YOU OBTAINED IT FOR A FULL REFUND.
1. DEFINITIONS (as used in this Agreement):
(a) "SOFTWARE" means all software, in object code only, provided by Licensor to
you hereunder, together with all firmware, technology contained in circuit
boards, and all Avid-authorized updates, replacements or modifications provided
to you.
(b) "HARDWARE" means any computer and/or other equipment which is sold by
Licensor to you in conjunction with the Software. The Hardware may contain
refurbished parts.
(c) "DOCUMENTATION" means the user guides, reference manuals, installation
materials and other written materials relating to the System which Licensor
provides to you
(d) "SYSTEM" means a system furnished by Licensor and comprised of Hardware
and/or Software and related Documentation.
2. LIMITED USE LICENSE
(a) Subject to the terms and conditions contained in this Agreement, Licensor
grants, and you accept, a non-exclusive, non-transferable (except as provided
below) license and right (i) to use the Software only on and in connection with
the Hardware at your site, and (ii) to use the Documentation, in each case for
your internal purposes only. You may not use the Software separate from the
Hardware, or any replacement Hardware, and you may not make copies of the
Software or Documentation, except that you may make one copy of the Software
solely for back-up purposes. Additionally, you may not distribute copies of the
Software or the Documentation to others nor may you modify or translate the
Software or Documentation. You may not transfer the Software or this license,
except in compliance with Avid's license transfer procedures, which among other
things require the transferee prior to such transfer to agree in writing to be
bound by your obligations hereunder. Notwithstanding the foregoing, you may rent
the System to a third party for a temporary, defined period provided: (i) you
may not rent the Software separate from the Hardware; (ii) you remain
responsible for all of your obligations hereunder; (iii) you ensure that each
such third party complies with all obligations hereunder; (iv) you notify Avid
on request of the location of the System; and (v) you indemnify, defend and hold
Licensor (if not Avid) and Avid harmless from and against any claims or
liabilities that may arise from your rental of the System.
(b) You will take all reasonable steps to safeguard the Software and the
Documentation and to ensure that no unauthorized persons have access to the
Software or the Documentation, and that no persons authorized to have such
access shall take any action which would be prohibited by this Agreement if
taken by you. You will not attempt to reverse engineer or reverse compile the
Software, in whole or in part, except that if the country in which you are
located requires Licensor to allow you to reverse engineer the Software you may
do so only for the specific purposes for which Licensor is required by law to
allow you to reverse engineer. You will include and will not alter or remove any
copyright, patent, trade secret, proprietary and/or other legal notices
contained on or in the System, including the Software or the Documentation. The
existence of any such notices on or in the System shall not be construed as an
admission that publication has occurred.
(c) The Software may have "authorization keys" which shall be provided to you.
An authorization key is a unique series of data elements which enables you to
use the Software. Such keys are confidential and non-transferable and must be
destroyed by you upon termination of the license.
(d) If you are renting the System from the licensee who purchased the System
from Licensor, you shall be bound by all the terms and conditions of this
Agreement to the same extent as the such licensee; provided, however, that
Licensor makes no warranties to you under Section 6 below, and you shall not be
entitled to any Software maintenance and support, if any, provided by Avid under
Section 7 below.
3. TITLE
This license is not a sale of the Software or any copy. Avid retains title and
ownership of the Software and the documentation, including patents, copyrights,
trademarks, trade secrets and other proprietary rights applicable thereto, and
all copies, regardless of the form or media on or in which the original or any
copy may exist. Except as stated herein, this Agreement does not grant you any
rights to patents, copyrights, trade secrets, trademarks or any other rights in
respect of Software, Hardware and Documentation.
4. CONFIDENTIALITY
You acknowledge that the System contains proprietary and confidential property
of Avid and/or Avid's licensors (collectively, "Confidential Information"). You
will not disclose, provide or otherwise make available any such Confidential
Information to any person other than your employees and/or consultants who need
to have access thereto to carry out their duties and who are bound by
appropriate confidentiality or nondisclosure agreements.
5. GOVERNMENT END USERS
U.S. GOVERNMENT RESTRICTED RIGHTS. The System was developed at private expense
and with no government funds. If any Software or Documentation is acquired by or
on behalf of a unit or agency of the U.S. Government, the Government agrees that
such Software or Documentation is "commercial computer software" or "commercial
computer software documentation" and that, absent a written agreement to the
contrary, the Government's rights with respect to such Software or Documentation
are limited by the terms of the this License Agreement, pursuant to FAR
ss.12.212(a) and/or DFARS ss.227.7202-1(a), as applicable. The Software is
proprietary data, all rights of which are reserved under the copyright laws of
the United States.
6. WARRANTY
(a) Licensor warrants solely to you that the System will function in accordance
with Avid's published specifications for the period(s) set forth in the
applicable warranty policy in effect at the time of purchase. This warranty does
not apply to expendable components, such as, but not limited to, computer
diskettes and tapes. Licensor does not warrant that your use of the System will
be uninterrupted or error-free.
(b) If Licensor determines that the System, or the component parts thereof, for
which you have requested warranty service are not eligible for warranty service,
you will pay or reimburse Licensor for all reasonable costs of investigating and
responding to such request at Licensor's then prevailing time and materials
rates. If Licensor provides repair service or replacement parts that are not
covered by the warranty provided in this Section, you will pay Licensor at
Licensor's then prevailing time and materials rates.
(c) Licensor shall have no obligation to provide warranty or maintenance service
in respect of claims resulting, in whole or in part, from (i) catastrophe, fault
or negligence, (ii) improper or unauthorized use or repair of the System, (iii)
use of any System in a manner for which it was not designed, (iv) causes
external to the System such as, but not limited to, power failure or electric
power surges, or (v) use of the System in combination with equipment or software
not supplied or approved by Avid.
(d) Notwithstanding the above, no warranty shall apply to Hardware and Software
which is designated as "limited release" or "pre-release" or otherwise as not
being subject to warranty. All such Hardware and Software is provided "AS IS"
AND WITH ALL FAULTS.
EXCEPT AS STATED ABOVE, LICENSOR (IF NOT AVID) AND AVID DISCLAIM ALL WARRANTIES,
WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE SYSTEM OR ANY
COMPONENT PARTS THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
7. SOFTWARE MAINTENANCE (Applicable only if Avid provides maintenance)
Software maintenance charges and options are specified in the Avid Maintenance
Option/Price List effective from time to time and are subject to change by Avid
on 30 days' notice. In the event you purchase Software maintenance, such
maintenance shall be subject to the terms and conditions effective on the date
of such purchase, and Avid shall provide the following, plus options, if any,
which you purchase, effective immediately upon expiry of the applicable warranty
period.
(a) You will receive one copy of maintenance releases to the Software and
Documentation as they are generally made available at no additional charge to
Avid customers which have purchased Avid software maintenance. Maintenance
releases may contain minor functional enhancements and corrections.
(b) Avid will use reasonable efforts, including by means of a workaround or
telephone hot-line support, to cause Software not covered by Avid's warranty to
perform substantially in accordance with specifications after having been
notified by you of non-performance.
(c) Avid will provide maintenance only on the then most current and one
immediately prior version of the Software. Avid's obligation to provide
maintenance shall be conditioned on your: using only Avid-approved products and
maintaining the correct operating environment in accordance with requirements
stipulated in the applicable System specifications; designating one of your
employees at each site to be Avid's single service contact and allowing Avid
reasonable access to the System and necessary data; promptly installing all
changes and/or updates furnished by or on behalf of Avid; notifying Avid in
writing prior to relocating the System to a permitted location other than the
site at which the System is then-currently installed; and being current in all
payments to Avid.
(d) In the event you request a field visit to perform maintenance or warranty
services, you agree to pay Avid its then-current charges associated with field
visits.
8. LIMITATION OF LIABILITY
THE MAXIMUM LIABILITY OF LICENSOR AND/OR AVID (AND ITS LICENSORS) ARISING OUT OF
THE SALE/LICENSE OF THE SYSTEM OR THE USE THEREOF OR THE PROVISION OF
MAINTENANCE, WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT
EXCEED THE ACTUAL PAYMENTS RECEIVED BY IT.
9. EXCLUSION OF DAMAGES
IN NO EVENT SHALL LICENSOR AND/OR AVID (AND ITS LICENSORS) BE LIABLE FOR
SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, ECONOMIC OR CONSEQUENTIAL DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR LOSS OF USE DAMAGES (INCLUDING
WITHOUT LIMITATION "DOWNTIME") AND LOST PROFITS, ARISING HEREUNDER OR FROM THE
SALE OF SYSTEM OR THE LICENSE OF THE SOFTWARE AND DOCUMENTATION OR THE USE OF
ANY OF THEM OR THE PROVISION OF MAINTENANCE.
10. TERM
This license is effective until terminated. You may terminate the license at any
time by returning the Software and all Documentation to Licensor and by removing
the Software and all copies thereof from the memory of any computer into which
the Software has been transferred. If you fail to perform any of your material
obligations hereunder, Licensor will offer you 15 days' opportunity to cure such
nonperformance. Upon expiry of such period without the nonperformance being
cured, Licensor may by immediate written notice terminate this Agreement,
including the license of the Software and the Documentation. Within seven days
of Licensor's termination of this Agreement, you will return to Licensor the
original and all copies of the Software and the Documentation. Any Software you
are required to return hereunder includes circuit boards containing Avid
proprietary software, firmware or other technology.
11. EXPORT
You agree that neither the Software nor any direct product thereof is being or
will be shipped, transferred or reexported, directly or indirectly, into any
country prohibited by the United States Export Administration Act and the
regulations thereunder or will be used for any purposes prohibited by the Act.
12. GENERAL
(a) If Avid is not the Licensor under this Agreement, the parties agree that
Avid is an intended third party beneficiary of this Agreement and may enforce
the provisions hereof.
(b) This Agreement supersedes all prior agreements and understandings between
the parties related to the subject matter herein and is intended by the parties
to be the complete and exclusive statement of the terms of their Agreement. Any
proposed variations from or additions to this Agreement contained in any
purchase order or other communication which you submit to Licensor will be null
and void unless agreed to in writing by an authorized representative of
Licensor.
(c) The remedies contained herein are cumulative and in addition to any other
remedies at law or equity. Licensor's failure to enforce, or waiver of a breach
of, any provision hereof shall not constitute a waiver of any other breach of
such provision. You acknowledge that a breach by you of Section 2 or 4 of this
Agreement would constitute irreparable harm to Avid for which a remedy at law
would be inadequate and therefore consent to being enjoined from any such breach
without requiring Licensor or Avid to post a bond.
(d) Licensor shall not be considered in default in performance of its
obligations hereunder if performance of such obligations is prevented or delayed
by acts of God or government, war, riots, acts of civil disorder, labor
disputes, failure or delay of transportation or telecommunications, or by
vendors or subcontractors, or any other similar cause or causes beyond its
reasonable control.
(e) The terms and conditions of this Agreement will be held as confidential by
both parties hereto, provided, however, that Licensor and Avid may cite that you
are a user of the System.
(f) The System is manufactured for standard commercial uses and are not intended
to be sold or licensed for use in critical safety systems or nuclear facilities.
(g) This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts, U.S.A., without regard to conflict of laws rules that would cause
the laws of any other jurisdiction to apply.
Copyright (C) 1998, Avid Technology, Inc. and its licensors. All rights
reserved.