To be completed by academic institutions interested in acquiring Digital Project software for use on campus. See academic licensing policies for instructions.
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12-MONTH RENEWABLE ACADEMIC LICENSE AGREEMENT GEHRY TECHNOLOGIES, INC., ("GT") agrees to grant the [Academic Institution] ("Licensee") a software license ("License") in accordance with the following terms and conditions: SECTION 1. DEFINITIONS. 1.1 12-Month License Charge. “12-Month License Charge” or “LC” is the 12-month cost which is paid in advance at the end of the expiration period. If the LC is not paid, the software stops working. See Exhibit “A” for current price list. 1.2 Daemon. “Daemon” or "Disk And Execution Monitor" is a program that is not invoked explicitly, but lies dormant waiting for some condition to occur (e.g., LPT spooler directory would invoke the spooling daemon, which would then print the file.) 1.3 Product. “Product" means one set of CD-ROM disks containing the software and documentation, if any, listed in Exhibit “A” together with any and all corrections and updates furnished by GT to Licensee under paragraph 4.2. SECTION 2. PRODUCT DELIVERY AND LICENSE. 2.1 Deliverables. Upon execution of this Agreement, GT shall deliver to Licensee one version of the Product, with the appropriate number of license keys. 2.2 Grant. GT hereby grants Licensee a personal, nonexclusive, nontransferable License to install and use the Product for the academic requirements of Licensee, on computers located on the premises of Licensee. This license specifically prohibits the use of the software for any commercial for-fee work. 2.3 Use. Licensee shall use the Product and the documentation only for the purposes specified in paragraph 2.2 and in accordance with the following: (a) The licensing Daemon supplied with the Program shall be installed, which shall be accessible only to members of, employees of, or students enrolled in the [Academic Institution]. Licensee shall use the Product only on computers which are owned or used by Licensee and connected to said network server, and will use the Product and documentation solely for Licensee's academic use. (b) Licensee shall not modify or prepare derivative works from the Product or documentation; (c) Licensee shall not reverse engineer, disassemble or decompile the Product; (d) Licensee shall not remove, obscure, or alter any notice of patent, copyright, trade secret, trademark, or other proprietary right present on any Product or documentation; and (e) Licensee shall not sub-license, sell, lend, rent, lease, or otherwise transfer all or any portion of the Product or the documentation to any third party except as permitted in paragraph 8.2. 2.4 Protection Against Unauthorized Use. Licensee shall promptly notify GT of any unauthorized use of the Product or documentation that comes to Licensee's attention. In the event of any unauthorized use by any of Licensee’s employees, agents, representatives or students, Licensee shall use reasonable efforts to terminate such unauthorized use and to retrieve any copy of the Product or documentation in the possession or control of the person or entity engaging in such unauthorized use. Licensee shall immediately notify GT of any legal proceeding initiated by Licensee in connection with such unauthorized use. GT may, at its option and expense, participate in any such proceeding and, in such event, Licensee shall provide such authority, information and assistance related to such proceeding as GT may reasonably request to protect GT's interests. 2.5 Reservation of Proprietary Rights. The Product and documentation involve valuable copyright, trade secret, trademark and other proprietary rights belonging to GT. Except for the License granted under paragraph 2.2, GT reserves all rights to the Product and documentation. No title to or ownership of any Product or proprietary rights related to the Products or documentation is transferred to Licensee under this Agreement. SECTION 3. PAYMENT. 3.1 Use of a Demo Version. Licensee may use the Product for a period of thirty (30) days from the date that Licensee first installs it. Once this thirty (30) day period has expired, Licensee must either purchase a permanent license to use the Product, pursuant to paragraph 3.2 below, or promptly delete all copies of the Product in its possession. 3.2 Payment. In consideration for GT granting Licensee the license under paragraph 4, Licensee shall pay to GT the 12-Month License Charge (LC) specified in Exhibit “A” within thirty (30) days after Licensee’s receipt of GT’s invoice. The renewal LC will be invoiced sixty (60) days before the expiration of the License. Payment must be received before the License expires in order for it to be renewed without interruption. This LC is based upon the fee schedule included in Exhibit “A”. Unless otherwise specified, the license fee specified in this Agreement does not include any sales, use, excise or other applicable taxes (excluding any applicable federal and state taxes based on GT’s net income). Licensee will pay or reimburse GT for any and all such taxes. Any amount not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month, determined and compounded on a daily basis from the date due until the date paid. Licensee will pay such interest when remitting the principal amount to GT. Licensee shall pay all amounts due under this Agreement to GT at the address indicated at the end of this Agreement or such other location as GT designated in writing. SECTION 4. MAINTENANCE & SUPPORT. 4.1 Technical Support. Licensee shall designate and provide to GT in writing the names of one primary representative and one alternate representative, to whom GT will offer telephone and/or electronic mail (e-mail) technical support relating only to the installation of the licensed software, for a period of thirty (30) days after receipt of the software, during the hours of 8:00 a.m. to 5:00 p.m. (Pacific time), Monday through Friday, excluding national holidays observed by GT. Licensee will ensure that only the persons designated as the primary and alternate representatives will utilize the telephone support. GT shall not be obligated to answer support questions from persons other than those currently registered with GT as the primary or alternate representative. The designated representatives are: Primary representative: Alternate representative: 4.2 Software Updates. Upon the release of a new version of the Product, Licensee shall be provided with a copy of the new version(s) in accordance with the terms of the upgrade policy established by GT from time to time. SECTION 5. TERMINATION. 5.1 Term. The term of this Agreement and the License set forth in paragraph 2.2 shall commence on the date of this Agreement and shall end upon termination of this Agreement pursuant to paragraph 5.2 or 5.3. 5.2 Termination By Licensee. Licensee may terminate this Agreement and the License by giving thirty (30) days written notice to GT. Any and all outstanding fees due must be paid commensurate with such notice of termination. 5.3 Termination By GT. If Licensee defaults in the performance of or compliance with any of its obligations under this Agreement, and such default has not been remedied or cured within thirty (30) days after GT gives Licensee written notice specifying the default, GT may terminate this Agreement and the License, in addition to its other rights and remedies under law. 5.4 Post Termination. Upon termination of this Agreement by GT, Licensee shall immediately cease use of the Product and documentation and destroy (and in writing certify such destruction) or return to GT all copies of the Product and documentation then in Licensee’s possession or control within five (5) days after termination, and immediately pay GT all outstanding fees then owing under this Agreement. 5.5 Survival. Sections 5, 7 and 8 and paragraphs 2.5 and 6.4 and all other provisions of this Agreement which may reasonably be interpreted or construed as surviving the completion or earlier termination of this Agreement, shall survive the completion or earlier termination of this Agreement. SECTION 6. WARRANTIES AND REMEDIES. 6.1 Performance Warranty. GT warrants to Licensee that for a period of thirty (30) days commencing upon delivery of the Product to Licensee, that when operated in accordance with the documentation and other instructions provided by GT, the Product will perform substantially in accordance with the functional specifications set forth in the documentation. During the warranty period, GT will provide Licensee, at no additional charge, with (i) a replacement copy of the Product if the media becomes damaged or is destroyed to the extent that the Product is unusable, and (ii) advice, consultation and assistance to use the Product and diagnose and correct problems that Licensee may encounter. 6.2 Remedy. If the Product fails to comply with the warranty set forth in paragraph 6.1, GT will use commercially reasonable efforts to correct the noncompliance provided that Licensee notifies GT in writing of the noncompliance within thirty (30) days after delivery of the Product to the Licensee; and GT is able to reproduce the noncompliance. If after the expenditure of commercially reasonable efforts GT is unable to correct any such noncompliance, GT may, in its sole discretion, refund to Licensee all or an equitable portion of the license fee paid by Licensee to GT for such Product in full satisfaction of Licensee’s claims relating to such noncompliance. 6.3 Warranty Limitations. GT does not warrant that the Product is free from all bugs, errors and omissions; that the operation of the Product will be uninterrupted; that the Product will meet the Licensee’s requirements; or that all defects will be corrected. The warranty set forth in paragraph 6.1 applies only to the latest release of the Product made available by GT to Licensee. The warranty in paragraph 6.1 shall be void if failure of the Product results from misuse, casualty loss, use or combination of the Product with any products, goods, services or other items furnished by anyone other than GT or any modification not made by or for GT. 6.4 DISCLAIMER AND RELEASE. THE WARRANTY AND THE REMEDIES OF LICENSEE SET FORTH IN THIS SECTION 6 ARE EXCLUSIVE. GT DOES NOT MAKE OR GRANT, AND LICENSEE HEREBY WAIVES, RELEASES AND DISCLAIMS, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF GT AND ALL OTHER REMEDIES, RIGHTS AND CLAIMS OF LICENSEE, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCT, DOCUMENTATION, SERVICES OR OTHERWISE ARISING UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, REMEDY, OR CLAIM IN TORT, NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF GT (WHETHER ACTIVE, PASSIVE OR IMPUTED); (D) ANY OBLIGATION, LIABILITY, REMEDY, RIGHT OR CLAIM FOR INFRINGEMENT AND (E) THAT GT IS NOT PROVIDING ANY DESIGN, ARCHITECTURAL, BUILDING, ENGINEERING OR CONSTRUCTION SERVICES HEREUNDER. SECTION 7. LIMITATIONS OF LIABILITY. 7.1 Excused Performance. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (other than payment obligations) as a result of any cause or condition beyond such party's reasonable control. 7.2 LIMITATION OF LIABILITY. IN NO EVENT WILL GT BE OBLIGATED OR LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHER CAUSE OF ACTION) FOR THE COST OF COVER OR FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, DATA, LOSSES ARISING FROM RESULTS OF USE OF THE SOFTWARE, OR OTHER PECUNIARY LOSS OR LOSS OF LIFE OR BODILY HARM), EVEN IF GT OR ITS EMPLOYEES OR REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GT’S LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, REPRESENTATION, STRICT LIABILITY OR PRODUCT LIABILITY OF GT) UNDER THIS AGREEMENT WITH REGARD TO ANY PRODUCT, DOCUMENTATION, SERVICES OR OTHER ITEMS SUBJECT TO THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL COMPENSATION PAID BY THE LICENSEE TO GT UNDER THIS AGREEMENT. NO ACTION, REGARDLESS OF FORM, ARISING UNDER THIS AGREEMENT, MAY BE BROUGHT BY THE LICENSEE MORE THAN ONE (1) YEAR AFTER HAVING KNOWLEDGE OF THE OCCURRENCE WHICH GIVES RISE TO THE CAUSE OF SUCH ACTION. SUCH LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. 7.3 Indemnity. To the fullest extent permitted by law, the Licensee shall, at its own expense, defend GT and its officers, directors, members, employees and agents against any third party claim, suit or proceeding (“Claim”) which arises out of, results from or is related to: (a) personal injury or property damage caused by use of the Product by the Licensee; (b) the negligence or willful misconduct of the Licensee; (c) a breach of any representation or warranty provided for herein by the Licensee; or (d) the violation of any law, statute, rule, regulation or other legal requirement by the Licensee. To the fullest extent permitted by law, the Licensee shall indemnify and hold GT harmless from any damages, costs and expenses (including reasonable attorney’s fees) to the extent they result from a Claim. The Licensee shall have the right to control the defense of such Claim and the settlement of such Claim, provided that the Licensee may not admit liability or guilt on the part of GT or obligate GT to take any action without GT’s prior written consent. SECTION 8. MISCELLANEOUS. 8.1 Notices. All notices required hereunder shall be sent to the persons identified in the Agreement (or such other persons as a party may designate in writing) and shall be deemed given: (i) when delivered if delivered by hand; (ii) when confirmation of receipt is received when sent by facsimile; (iii) one day after sending if sent by nationally recognized overnight carrier; or (iv) when received if sent by US mail, return receipt requested. 8.2 Assignment. Licensee shall not assign (directly, by operation of law or otherwise) this Agreement or any of its rights under this Agreement without the prior written consent of GT. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns. 8.3 Nonwaiver / Severability. If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. No waiver of any breach of this Agreement shall be a waiver of any other breach, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. 8.4 Entire Agreement. This Agreement consists of the entire Agreement and supersedes any and all prior agreements between GT and Licensee relating to the Product, documentation and other items subject to this Agreement. No amendment of this Agreement will be valid unless set forth in a written instrument signed by both parties. 8.5 Compliance with Export Control Laws. GT and Licensee shall each comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in their performance of this Agreement. Without limiting the generality of the foregoing, Licensee will comply with all export control laws and regulations of the United States in dealing with the Product including its export and use of the Product outside the United States. 8.6 Arbitration. Any controversy or claim arising out of or relating to this Agreement shall be submitted to arbitration before an arbitrator agreed upon by the parties, or if the parties cannot agree upon an arbitrator within thirty (30) days, to an arbitrator selected by the American Arbitration Association. The arbitration shall be conducted under the rules then prevailing of the American Arbitration Association (the “AAA Rules”), and subject to the provisions of Title 9 of Part 3 of the California Code of Civil Procedure (including the right to conduct discovery) or any successor statute (“Title 9”). To the extent the AAA Rules conflict with, or are supplemented by, the provisions of Title 9, the provisions of Title 9 shall govern and be applicable. The arbitrator may award attorneys’ fees and costs as part of the award. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding the foregoing, any controversy or claim not solely based on contract may be brought in any court of competent jurisdiction, subject to paragraph 8.7 below. 8.7 Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to principles of conflicts of laws. Each party hereby consents to the exclusive jurisdiction by the state and federal courts sitting in the State of California. GEHRY TECHNOLGIES, INC. 12541-A Beatrice Street Los Angeles, CA 90066 EXHIBIT “A” The license fee under the Agreement to which this Exhibit “A” is attached is based upon the DIGITAL PROJECT™ suite of Products.
I agree to the Terms and Conditions as specified in the license agreement. I understand that by submitting this form this information will be included in the Gehry Technologies database and that further product information may be forwarded to those named above.
