Please read this Sambar Server Distribution License (called the "Agreement")
carefully. Your use of the software or any related documentation
(called the "Licensed Product") indicates your acceptance of the following
terms and conditions. If you do not agree to these terms and conditions,
you may not install or use the Licensed Product or exercise any of the
rights granted hereunder.
This Agreement is made between Tod Sambar ("Licensor"), an individual
residing in California, USA, and ______________________________________
("Licensee"), a corporation with its place of business at
___________________________________________________________________.
WHEREAS, Licensee has evaluated the software product developed by Licensor, commonly known as Sambar Server, V5.0 ("SERVER"), and is desirous of obtaining the nonexclusive right to distribute this software product on a worldwide basis, in accordance with the instructions provided in the SERVER distribution.
WHEREAS, Licensor is desirous of granting Licensee a nonexclusive and nontransferable license to permit Licensee to distribute such product software in exchange for a lump sum royalty fee.
In consideration of the mutual covenants which follow, Licensor and Licensee agree:
1. Definitions
a. Licensed Product. The term "Licensed Product" means the computer program in object code described in Exhibit A hereto. For purposes of this Agreement, the Licensed Product is limited to three microcomputer operating systems, namely Microsoft Windows 95, Windows 98 and Windows NT.
b. Authorized User. The term "Authorized User" means the person or entity who utilizes the Licensed Product for its intended purpose without selling, leasing, or transferring it to any third party.
2. License
The Licensed Product is provided by the Licensor and is copyrighted and licensed, not sold. No patent licenses, express, implied, by estoppel or otherwise are granted by Licensor hereunder.
In accordance with the terms of this Agreement, Licensor grants to Licensee, and Licensee accepts from Licensor, a nonexclusive, nonassignable, and nontransferable license to use, copy and distribute the Licensed Product in non-printed, machine readable form on a worldwide basis to: 1) download, reproduce and prepare derivative works from the object code versions of the Software; and 2) distribute the Software and derivative works thereof ("Software Modifications") in object code only, and only when Licensee packages substantial "value-add" with the Software or Software Modifications. Examples of value-add would be other software products or hardware products.
Licensee shall require its distributors, dealers, and others in its distribution channels to comply with the relevant distribution terms of this Agreement.
3. Copies of Licensed Product
a. Right to Copy; Notices. The license granted in Section 2 of this Agreement includes the right to copy the Licensed Product in non-printed, machine readable form. In order to protect Licensor's trade secrets and copyrights in the Licensed Product, Licensee agrees not to attempt in any way to obliterate or destroy the trade secret or copyright notice and Licensor's name, address, and user number which are incorporated into, and part of, the Licensed Product. Licensee agrees to reproduce fully the trade secret or copyright notice and the Licensee's name, address and user number in all copies of the Licensed Product. Violation of any provision in this Subsection shall be the basis for the immediate termination of this Agreement.
b. Licensee Bears Cost. Licensee alone shall bear the cost of reproducing and distributing the Licensed Product in accordance with the terms of this Agreement. Licensor shall have no obligation to expend any funds whatsoever in connection with such copying and distributing.
4. Ownership of Licensed Product
Licensor represents that it is, and on the date of delivery of Licensed Product will be, the sole owner and copyright holder of Licensed Product; that it has, and on the date of the delivery of the Licensed Product will have, the full right and authority to grant this license and that neither this license nor performance under this Agreement does or shall conflict with any other agreement or obligation to which Licensor is a part of or by which it is bound.
5. Title to and Rights in Licensed Product
a. Proprietary Rights. The Licensed Product is proprietary to Licensor, and title to it remains in Licensor. All applicable common law and statutory rights in the Licensed Product including, but not limited to, rights in confidential and trade secret material, source code, object code, trademarks, service marks, patents, and copyrights, shall be and will remain the property of Licensor. Licensee shall have no right, title or interest in such proprietary rights.
b. Instruments. To protect the Licensor's rights in the Licensed Product, Licensee, as a licensee, shall at the reasonable request of Licensor, promptly execute and assign any and all applications, including, but not limited to, copyright applications, any and all assignments, and any other instruments which Licensor deems necessary to protect or maintain Licensor's rights in the Licensed Product. Licensee hereby irrevocably appoints Licensor as attorney-in-fact for Licensee with full power and authority to execute and deliver in the name of Licensee any such instrument or instruments.
6. Confidentiality
a. No Decompilation or Disassembly. Licensor represents and Licensee hereby acknowledges that the object code constituting the Licensed Product contains confidential and trade secret material which is not readily susceptible to reverse compilation or reverse assembly. Licensee and Authorized Users shall not attempt to decompile or disassemble the object code of the Licensed Product. Licensee further agrees that it will use its best efforts to prevent decompilation and disassembly of the object code of the Licensed Product by Authorized Users by advising Authorized Users of the provisions of this Subsection and by immediately reporting to Licensor and halting any reverse compilation or reverse assembly of the Licensed Product by any Authorized User of which Licensee has actual knowledge.
b. Other Restrictions. Licensee agrees to maintain the confidentiality of the Licensed Product and to protect as a trade secret any portion of the Licensed Product which has not been publicly disclosed by using all reasonable efforts to prevent any unauthorized copying, use, distribution, installation, or transfer of possession of the Licensed Product as defined in Subsection 1.a of this Agreement by either itself or Authorized Users. Licensee's obligations under this Subsection as they relate to the use of the Licensed Product by Authorized Users shall be to advise Authorized Users of the provisions in this Subsection and Subsection 1.a and 1.b and immediately report to Licensor and to halt unauthorized copying, use, distribution, installation, or transfer of possession of the Licensed Product by any Authorized User of which Licensee has actual knowledge.
7. Limited Warranty and Disclaimer of Liability
a. Results Not Warranted. Licensor has no control over the conditions under which Licensee and Authorized User use the Licensed Product and does not and cannot warrant the results obtained by such use.
b. Limited Warranty. In addition to warranting that it has the right to grant the license contained in this Agreement, Licensor warrants that the Licensed Product will perform substantially in accordance with the specifications found in Exhibit A attached hereto. The warranties contained in this Section are made for a period of thirty (30) days from the date on which this Agreement was entered into between Licensor and Licensee.
c. Limitations on Warranty. Licensor does not warrant that the functions contained in the Licensed Product will meet the requirements of Licensee or Authorized User or that the operation of the Licensed Product will be uninterrupted or error free. The warranty does not cover any copy of the Licensed Product which has been altered or changed in any way by Licensee or any Authorized User. Licensor is not responsible for problems caused by changes in or modifications to the operating characteristics of any computer hardware or operating system for which the Licensed Product is procured, nor is Licensor responsible for problems which occur as a result of the use of the Licensed Product in conjunction with software or with hardware which is incompatible with the operating system for which the Licensed Product is being procured.
d. Exclusion of Implied Warranties. ANY IMPLIED WARRANTIES INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED.
e. Exclusion of Any Other Warranties. The warranties contained in Subsection b of this Section are made in lieu of all other express warranties, whether oral or written. Only Licensor may make modifications to the warranty or additional warranties binding on Licensor, and such modifications or additional warranties must be in writing. Accordingly, additional statements such as those made in advertising, on-line documentation, or presentations, whether oral or written, do not constitute warranties by Licensor and should not be relied upon as such.
8. Limitation of Remedies
a. Replacement Sole Remedy. Subject to Section 16 of this Agreement, Licensor's entire liability and Licensee's exclusive remedy shall be the replacement by Licensor of any Licensed Product not meeting Licensor's "Limited Warranty".
b. Damages Limitation. LICENSOR DISCLAIMS ANY AND ALL LIABILITY FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFIT) ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO THE INSTALLATION, USE, OPERATION, OR SUPPORT OF THE LICENSED PRODUCT EVEN IF LICENSOR HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. Limitation of Any Recovery. Subject to Section 16 of this Agreement, Licensee specifically agrees that any liability on the part of Licensor arising from breach of warranty, breach of contract, negligence, strict liability in tort, or any other legal theory shall not exceed amounts paid by Licensee in fees for the use and maintenance of the Licensed Product.
9. Relationship of the Parties
For purposes of this Agreement, Licensee is not an agent of Licensor, and Licensee has no express or implied authority to act on behalf of or make any representations whatsoever on behalf of Licensor. Licensor has no right to control any activities of Licensee outside the terms of this Agreement.
10. Delivery
Upon execution of this Agreement, Licensor shall issue to Licensee a Distribution "License Key" for use with the Software.
11. Royalty Fee and Payment
Upon execution of this Agreement and delivery of the Licensed Product, Licensee shall pay to Licensor a lump sum royalty fee in the amount of $999.00 US.
12. Updates
This License Agreement does not and shall not include updates or enhancements to the Licensed Product.
13. Defaults and Termination
a. Procedure. In the event either party defaults in any obligation in this Agreement, the other party shall give written notice of such default, and, if the party in default has not cured the default within sixty (60) days of the notice, the other party shall have the right to terminate this Agreement.
b. Immediate Termination. Upon the occurence of any act which under Subsections 3.a or 6 of this Agreement gives rise to Licensor's right to terminate this Agreement immediately, Licensor shall have the right, at any time, to terminate the license granted in this Agreement without demand or notice.
c. Effective Termination. Upon termination of this Agreement, for whatever reason, the license granted under this Agreement to use the Licensed Product is immediately revoked. Within five (5) days after the termination of this Agreement for whatever reason, Licensee shall return to Licensor all copies of the Licensed Product in Licensee's possession, including all copies of the Licensed Product under the supervision and control of the Key Person. In the alternative, upon request of Licensor, Licensee shall destroy all such copies of the Licensed Product and certify in writing that they have been destroyed. TERMINATION SHALL NOT RELIEVE THE LICENSEE AND AUTHORIZED USERS OF THEIR OBLIGATIONS REGARDING THE CONFIDENTIALITY OF THE LICENSED PRODUCT.
d. Payments Not Excused. Without limiting any of the provisions contained in Subsections a, b, and c of this Section, in the event of termination as a result of the Licensee's failure to comply with any of its obligations under this Agreement, Licensee shall continue to be obligated for any payments due as of the date of termination. Termination of the license shall be in addition to and not in lieu of any equitable remedies available to Licensor.
14. Indemnity
Licensor, at its own expense, will defend and hold harmless any action brought against Licensee to the extent that it is based on a claim that the Licensed Product used within the scope of this Agreement infringes any patent, copyright, license, trade secret, or other proprietary right, provided that Licensor is immediately notified in writing of such a claim. Licensor shall have the right to control the defense of all such claims, lawsuits, and other proceedings. In no event shall Licensee settle any such claim, lawsuit, or proceeding without Licensor's prior written approval.
15. Term
This agreement is effective from ______________________________ to a date one (1) year from that date unless terminated earlier by either party because of the default of the other party in any obligation under this Agreement.
16. Arbitration
Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any controversy or claim arising out of or relating to this Agreement or to its breach shall be settled by an arbitration administered by the American Arbitration Association and pursuant to its rules, and judgment upon the award rendered in such arbitration may be entered in any court of competent jurisdiction.
17. General
a. Complete Agreement; Amendment. Each party acknowledges that it has read this agreement and any exhibit, understands them, and agrees to be bound by their terms, and further agrees that they are the complete and exclusive statement of the agreement between the parties which supersedes and merges all other proposals, understandings, and all other agreements, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties.
b. Notice. Any notice or communication required or permitted in this Agreement shall be in writing and shall be deemed to have been duly given on the day of service if served personally or five (5) days after mailing if mailed by first class mail, registered or certified, postage prepaid, and addressed as follows:
To Licensor: Tod Sambar
172 Ada Ave. #6
Mountain View, CA 94043 USATo Licensee: __________________________________
__________________________________
__________________________________
__________________________________
__________________________________
c. Purchase Order. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any purchase order, the terms and conditions of this Agreement shall control.
d. Governing Laws. This Agreement and performance under this Agreement shall be governed by the laws of the State of California.
e. Limitations Period. No action, regardless of form, arising out of this Agreement may be brought by Licensee more than two (2) years after the cause of action has arisen.
f. Severability. If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
g. Assignment. Licensee may not assign or sublicense, without the prior written consent of Licensor, its rights, duties, or obligations under this Agreement to any person or entity, in whole or in part.
h. Assumption by Successor to Licensor. In the event of the acquisition of Licensor's business, software, or both by a third party, Licensor agrees to make such an acquisition subject to the assumption of the terms of this Agreement by the third party.
i. Cessation of Business. Should Licensor cease doing business for reasons other than the acquisition of the business or software by a third party and so advises the Licensee in writing, the license granted in Section 2 of this Agreement shall become a perpetual, nonexclusive, nontransferable license. The provisions of Section 3, 4, and 5 of this Agreement shall apply fully to such a license.
j. Waiver. The waiver or failure of Licensor to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
k. Headings. The headings appearing at the beginning of the sections contained in this Agreement have been inserted for identification and reference purposes only and shall not be used in the construction and interpretation of this Agreement.
l. Attorney Fees. If either party to this Agreement shall bring
any action, suit, counterclaim, appeal, arbitration, or mediation
for any relief against the other, declaratory or otherwise, to enforce
the terms hereof or to declare rights hereunder (collectively, an Action),
the losing party shall pay to the prevailing part a reasonable sum for
attroneys' fees and costs incurred in bringing and prosecuting such
Action and/or enforcing any judgement, order, ruling, or award
(collectively, a Decision) granted therein, all of which shall be deemed
to have accrued on the commencement of such Action and shall be paid
whether or not such Action is prosecuted to a Decision. Any Decision
entered in such Action shall contain a specific provision providing
for the recovery of attorneys' fees and costs incurred in enforcing
such Decision.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement
on the ________ day of _________, 19___.
AGREED:
LICENSOR:
__________________________________________
Signature
Tod Sambar
LICENSEE:
__________________________________________
Signature
Print Name:___________________________________________________
The Sambar Server is a HTTP daemon and proxy server with the following features:
Functionality included in the Sambar Server 5.0 Pro distribution is not included in this license agreement.
The following elements of the Sambar Server distribution are NOT part of the Licensed Product. Furthermore, these elements are not the property of the Licensor and in many cases may not be distributed without the written consent of their respective owners or adherence to license provisions: