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- SOFTWARE LICENSE AGREEMENT
-
- This is a SOFTWARE LICENSE AGREEMENT by and among you (ôLicenseeö), and
- Techsmith Corporation, a Michigan Corporation of 2405 Woodlake dr., Okemos MI
- 48864 (VENDOR). Please read this Agreement before using the SOFTWARE and the
- Services. By using the SOFTWARE you indicate that you have read and
- understand this Agreement and agree to accept and be bound by this Agreement.
- If you do not agree with this Agreement, do not ACCESS the software and
- PROMPTLY return the documentation TO VENDOR.
-
-
-
- W I T N E S S E T H:
-
- WHEREAS, Vendor has developed and owns certain computer software described as
- Camtasia Studio version 2.0 ; and
-
- WHEREAS, Licensee desires to obtain a license to access the Software, subject
- to the terms and conditions of this Agreement; and
-
- WHEREAS, Vendor desires to grant Licensee a license to access the Software,
- subject to the terms and conditions of this Agreement.
-
- NOW, THEREFORE, in consideration of the mutual benefits of the covenants and
- restrictions set forth below, Licensee and Vendor hereby agree as follows:
-
- ARTICLE I: DEFINITIONS:
-
- Section 1.01 -- Recitals: The above identification of parties and recitals
- are true and correct.
-
- Section 1.02 -- Definitions: The following definitions shall apply:
-
- Access: The term ôaccessö and variants thereof (including, but not limited
- to, the terms ôaccessö, ôaccessibleö and ôaccessingö, in upper or lower case)
- shall mean to store data in, retrieve data from or otherwise approach or make
- use of (directly or indirectly) through electronic means or otherwise.
-
- Associates: The term ôAssociatesö shall mean an employee of Vendor or an
- independent contractor hired by Vendor.
-
- Authorized Person: The term ôAuthorized Personö shall mean employees of
- Licensee authorized by Licensee to access Confidential Information and
- individuals or entities who are authorized in writing by Vendor to receive
- Confidential Information and who agree to maintain the confidentiality of
- such Confidential Information.
-
- Cancellation Notice: The term ôCancellation Noticeö shall mean that written
- notice sent by one party to this Agreement to the other party to this
- Agreement seeking to cancel this Agreement because of breach by such other
- party.
-
- Concurrent Access: The term ôConcurrent Accessö shall mean concurrent access
- to the Product using the same Keycode.
-
- Confidential Information: The term ôConfidential Informationö shall mean all
- information concerning the business and technical plans of Vendor and all
- information in connection with the Services, the Product and this Agreement
- which is disclosed by Vendor to Licensee or learned by Licensee and which is
- not: (a) already known to Licensee; (b) conveyed to Licensee by a third
- party without restriction; (c) released by Vendor without restriction; (d)
- independently developed by Licensee; or (e) in the public domain.
-
- Defect: The term ôDefectö shall mean programming errors which substantially
- impair the performance, utility and functionality of the Software as
- represented in the Documentation.
-
- Documentation: The term ôDocumentationö shall mean the Software user guide
- as provided in printed or electronic form to Licensee.
-
- Effective Date: The term ôEffective Dateö shall mean the date Licensee
- accesses the Product.
-
- Export Laws: The term ôExport Lawsö shall mean the Export Administration
- Act, 50 U.S.C. º2401 et. seq., and the Export Administration Regulations, 15
- C.F.R. Parts 730-774.
-
- Government: The term ôGovernmentö shall mean the state and federal
- governments of the United States of America, including (without limitation)
- any and all branches, bodies, agencies, departments, offices, entities and
- corporations in connection therewith.
-
- Licensee: The term ôLicenseeö shall mean the individual or entity referenced
- herein as Licensee.
-
- Keycode: The term ôKeycode ö shall mean that certain user name and keycode
- assigned by Vendor to each User for purposes of accessing the Software.
-
- Price Schedule: The term ôPrice Scheduleö shall mean the schedule of fees
- and payment terms regarding access to the Software as published by Vendor and
- as modified by Vendor from time to time.
-
- Product: The term ôProductö shall mean the Software and the Documentation.
-
- Restatements: The term ôRestatementsö shall mean Section 757 of the
- Restatement of Torts, Section 39 of the Restatement (Third) of Unfair
- Competition, 18 U.S.C. º1839 and Section 1 of the Uniform Trade Secrets Act.
-
- Rules: The term ôRulesö shall mean laws, rules, regulations, orders,
- procedures or policies of Government or third parties as amended.
-
- Software: The term ôSoftwareö shall mean the executable code for that
- certain Camtasia Studio version 2.0 computer software developed and owned by
- Vendor as accessed by Licensee.
-
- Term: The term ôTermö shall mean a period starting on the Effective Date and
- continuing until this Agreement is terminated or cancelled as provided under
- this Agreement.
-
- Unauthorized Access: The term ôUnauthorized Accessö shall mean any access to
- the Product except for the exclusive purposes of using the performance,
- utility and functions of the Product for internal business operation of
- Licensee only, and training Authorized Persons of in the use of the Product.
-
- Unauthorized User: The term ôUnauthorized Userö shall mean any individual
- who accesses the Product except for an Authorized Persons of Licensee to
- access the Product using the performance, utility and functions of the
- Product for internal business operations of Licensee and training Authorized
- Persons of Licensee in the use of the Product.
-
- Users: The term ôUsersö shall mean Authorized Persons of Licensee authorized
- by Licensee to access the Product, excluding Unauthorized Users.
-
- ARTICLE II: SCOPE OF LICENSE:
-
- Section 2.01 -- Grant of License: Vendor hereby grants to Licensee, as of the
- Effective Date, a non-exclusive, non-transferable license to access and use
- the Product by Authorized subject to the terms and conditions of this
- Agreement.
-
- Section 2.02 -- UnAuthorized Use: Licensee shall prevent Unauthorized Users
- from accessing the Product. Licensee shall prevent Unauthorized Access to
- the Product. Licensee shall promptly inform Vendor of any and all
- Unauthorized Access (or suspected Unauthorized Access) and Unauthorized Users
- (or suspected Unauthorized Users) of which Licensee has knowledge or
- suspicion. Access to the Product using third party software for the purpose
- of viewing, using or disclosing the internal structure of the Product;
- Concurrent Access; and modifications to the Product shall be deemed
- Unauthorized Access.
-
- ARTICLE III: SERVICES:
-
- Section 3.01 -- Keycode: Vendor shall assign each User a Keycode for
- purposes of accessing the Software during the Term. The Keycode shall be
- used only by an Authorized Person on a single computer at a time. An
- Authorized Person may install the Product on more than one computer, but may
- only run the Product on one computer at a time. All assignments of the
- Keycode by Licensee shall be void. Licensee shall not concurrently access
- the Software using the same Keycode. Licensee shall prevent Concurrent
- Access. Licensee shall be responsible for the confidentiality and
- maintenance of the Keycode. Modification and termination of the Keycode
- shall be subject to prior written approval of Vendor.
-
-
- ARTICLE IV: PAYMENTS AND FEES:
-
- Section 4.01 -- Fees: Licensee shall pay the Fee to Vendor in accordance
- with the payment terms set forth in the Price Schedule.
-
- Section 4.02 -- Taxes: Licensee shall pay any and all applicable taxes
- (municipal, state and federal) which may now or hereafter be imposed on
- accessing the Product or use of the Services by Licensee (excluding income
- taxes assessed against Vendor).
-
- ARTICLE V: INTELLECTUAL PROPERTY:
-
- Section 5.01 -- Ownership and Title: Vendor shall own any and all rights,
- title and interests in the Product, including (without limitation) ownership
- rights to any and all patents, copyrights, trademarks, and trade secrets in
- connection therewith.
-
- Section 5.02 -- Confidential Information: Licensee shall not disclose
- Confidential Information except to Authorized Persons. Licensee shall not
- duplicate, use or disclose Confidential Information except as otherwise
- permitted under this Agreement. The Product shall be deemed Confidential
- Information of Vendor.
-
- Section 5.03 -- Trade Secrets: Licensee hereby acknowledges and agrees that
- the Confidential Information of Vendor derives independent economic value
- (actual or potential) from not being generally known to other persons who can
- obtain economic value from its disclosure or use and not being readily
- ascertainable by proper means by other persons who can obtain economic value
- from its disclosure or use; is the subject of reasonable confidentiality
- efforts by Licensee.
-
- Section 5.04 -- No Contest: Licensee shall not contest or aid in contesting
- the ownership or validity of the copyrights, trademarks, service marks, and
- trade secrets of Vendor.
-
- Section 5.05 -- Reverse Engineering: Licensee shall not reverse engineer,
- decompile, disassemble or translate the Product or access the Product using
- third party software, without the prior written consent of Vendor. Licensee
- shall not allow the Product to be reverse engineered, decompiled,
- disassembled, translated or accessed using third party software without the
- prior written consent of Vendor.
-
- Section 5.06 -- Modifications: Licensee shall not modify the Product and
- shall not allow the Product to be modified without the prior written consent
- of Vendor. Licensee shall not use the Product or any materials incident
- thereto to develop computer software without the prior written consent of
- Vendor. If the Product is modified, such modifications shall be the sole and
- exclusive property of Vendor and Vendor shall own any and all of the rights,
- title, and interests to such modifications and any resulting computer
- software, including (but not limited to) any and all copyrights, patents,
- trademark and trade secrets related thereto.
-
- Section 5.07 -- Export: Licensee shall not export or reexport the Product
- and shall not allow the Product to be exported or perform any act in
- violation of any applicable law, including (without limitation) the Export
- Laws. The Product or Services shall not be used by Licensee to transfer the
- Data to either a foreign national or a foreign destination in violation of
- any applicable law, including (without limitation) the Export Laws.
-
- Section 5.08 -- U.S. Government Restricted Rights: Where Licensee is the
- U.S. Government or an agency or department thereof (collectively
- ôGovernmentö), the Product is provided with RESTRICTED RIGHTS and use or
- disclosure by the Government is subject to restrictions set forth in
- subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software
- clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (c)(2) of the
- Commercial Computer Software Restricted Rights clause at 48 C.F.R. 52.227-19,
- as applicable, which is incorporated herein by this reference.
-
- Section 5.09 -- Continuation: The terms and provisions of this Article V
- shall survive termination and cancellation of this Agreement.
-
- ARTICLE VI: WARRANTY:
-
- Section 6.01 -- Software Warranty: Vendor represents and warrants that the
- Software shall perform substantially as represented in the Documentation for
- a period of thirty (30) days after the Effective Date.
-
- Section 6.02 û NO Express Warranties: Licensee hereby acknowledges and
- agrees that VENDOR (including officers, Associates, agents, directors, and
- Shareholders OF Vendor) has not made or granted any express warranties
- concerning the Services and the Product except for the Software warranty in
- Section 6.01.
-
- SECTION 6.03 -- WARRANTY LIMITATION: THE WARRANTIES SET FORTH IN SECTION
- 6.01 are IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT
- NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND
- WARRANTIES OF MERCHANTABILITY. THE WARRANTY SET FORTH IN SECTION 6.01 ARE
- LIMITED TO THE SOFTWARE AND DO NOT APPLY TO ANY THIRD PARTY SOFTWARE OR
- TECHNOLOGY. AS A RESULT OF THE ABOVE, EXCEPTING THE WARRANTY SET FORTH IN
- SECTION 6.01, Vendor HEREBY DISCLAIMS AND LICENSEE HEREBY WAIVES ALL
- WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL IMPLIED
- WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES OF
- MERCHANTABILITY AND ALL IMPLIED WARRANTIES ARISING BY USAGE OF TRADE, COURSE
- OF DEALING OR COURSE OF PERFORMANCE. Vendor does not make any warranty and
- Licensee hereby waives any and all warranties as to the results obtained from
- the SUPPORT services. Licensee hereby acknowledges and agrees that use of
- SUPPORT services shall be at the sole and exclusive risk of Licensee and
- subject to the rules, the policy statement and this agreement. Vendor shall
- not be liable under any circumstances for harm or damages resulting from or
- arising out of Licensee inability to use Vendor services or to access the
- product.
-
- Section 6.04 -- Regulations: The Product shall not be used (directly or
- indirectly) to conduct or solicit the performance of any business or activity
- which is tortious or prohibited by law. Licensee shall comply with Rules, if
- any.
-
- Section 6.05 -- Force Majeure: Vendor shall not be liable for any failure to
- perform its obligations or for any failure of the Product because of
- circumstances beyond the control of Vendor. Such circumstances shall include
- (without limitation) any acts or omissions of any government or governmental
- authority, declarations of government, war, natural disaster, act of a public
- enemy, acts of terrorism, riot, sabotage, labor disputes, power failure,
- delays in transportation or deliveries of supplies or materials, laws, court
- orders, acts of God, computer failure, network downtime, electronic mail
- failure, telecommunication failure, failure of Licensee to cooperate with the
- reasonable requests of Vendor, misuse of the Product by Licensee or a third
- party, misuse of the Product by Licensee or a third party, breach of this
- Agreement by Licensee, or any other events reasonably beyond the control of
- Vendor.
-
- Section 6.06 -- Continuation: The terms and provisions of this Article VI
- shall survive termination and cancellation of this Agreement.
-
-
- ARTICLE VII: INDEMNIFICATION:
-
- Section 7.01 -- Limitation of Damages: Vendor shall not be liable for any
- lost profits or consequential, exemplary, incidental or punitive damages
- under this Agreement (including, without limitation, in connection with (i)
- use or performance of Product (ii) use, performance or operation of the
- Product; and (iii) loss of data), regardless of the form of action, whether
- in contract or in tort, including negligence, regardless of whether Vendor
- has been advised of the possibility of such damages in advance or whether
- such damages are reasonably foreseeable.
-
- Section 7.02 -- Limitation of LIABILITY: The liability of VENDOR for any
- reason and for any cause of action whatsoever in connection with this
- Agreement, the Product, or SUPPORT Services, regardless of the form of
- action, whether in contract or in tort, including negligence, shall not
- exceed the total amount of money paid by Licensee to VENDOR within the next
- preceding twelve months from the date which such claimed damage or injury
- arose.
-
- Section 7.03 û Licensee Indemnification: Licensee shall release, indemnify,
- defend and hold harmless Vendor (including officers, directors, agents, and
- Associates of Vendor), Vendor subsidiaries, Vendor affiliates and Vendor
- suppliers and distributors, from and against any and all losses, costs,
- claims, suits, obligations, demands, damages, liabilities, expenses and
- reasonable attorney and paralegal fees on account thereof resulting from or
- in connection with (i) access to the Product by Licensee (including, without
- limitation, any claim regarding use of the Product by Licensee in an
- infringing manner or any claim by third parties for breach of warranty,
- libel, slander, invasion of privacy or false advertising); (ii) the
- performance of the Product; (iii) the or support services; (v) Licensee
- failure to comply with the Rules or Licensee breach of the Rules; (vi) the
- acts (or any failure to act) of Licensee hereunder; or (vii) any breach by
- Licensee of the obligations of Licensee hereunder. This 7.01, 7.02, and 7.03
- shall survive termination and cancellation of this Agreement. Licensee
- hereby accepts responsibility for, and shall be liable for, all access to the
- Product and use of Vendor services in connection with the Keycode
-
- Section 7.04 û Vendor Indemnification: If a third party receives a judgment
- from a court of competent jurisdiction upholding claims that the Product
- violates trade secrets, proprietary information, trademark, copyright or any
- patent rights of such third party, Vendor shall perform one or more of the
- following actions (as determined by Vendor) within one year of the date of
- judgment in favor of such third partyÆs claim is rendered by a court of
- competent jurisdiction:
-
- (1) Replacement: Replace the Product by delivering to Licensee a non-
- infringing software product or Documentation (as the case may be) of
- substantially equivalent functional and performance capability;
-
- (2) Modification: Modify the Software or the Documentation (as the case
- may be) to avoid the infringement without substantially eliminating the
- functional and performance capabilities of the Product as described in the
- Documentation;
-
- (3) Obtain License: Obtain a license for use of the Product from the third
- party claiming infringement for use of the Product by Licensee.
-
- The remedies set forth herein shall be the sole and exclusive remedies of
- Licensee for any and all claims of indemnification under this Section 7.04.
-
- ARTICLE VIII: TERMINATION:
-
- Section 8.01 -- Termination Limitations: This Agreement shall only be
- terminated or canceled as provided under this Article VIII. This Agreement
- shall be valid for the Term. Licensee may terminate this Agreement for
- convenience upon providing thirty (30) days advance written notice of
- termination to the other parties.
-
- Section 8.02 -- Cancellation: If a party violates its obligations under this
- Agreement, the other party may cancel this Agreement by sending Cancellation
- Notice describing the noncompliance to the noncomplying party and to the
- other party. Upon receiving Cancellation Notice describing the noncompliance,
- the noncomplying party shall have thirty (30) days from the date of such
- notice to cure any such noncompliance. If such noncompliance is not cured
- within the required thirty day period, the party providing Cancellation
- Notice shall have the right to cancel this Agreement as of the thirty-first
- (31st) day after the date of the Cancellation Notice.
-
- Section 8.03 -- Access to the Product: Upon termination or cancellation of
- this Agreement, Licensee shall cease accessing the Product, and provide
- Vendor with a certificate of compliance with this Section 8.03 signed by an
- authorized representative of Licensee.
-
- ARTICLE IX: MISCELLANEOUS:
-
- Section 9.01 -- Entire Agreement: This Agreement contains the entire
- understanding of the parties and supersedes previous verbal and written
- agreements between the parties concerning the subject matter herein.
-
- Section 9.02 -- Amendments and Modifications: Vendor may modify this
- Agreement from time to time in the exclusive discretion of Vendor and Vendor
- shall notify Licensee of the same in writing. Such modifications shall be
- deemed accepted and approved by Licensee, shall apply to the Product and
- support services, and shall be binding upon Licensee upon notice to Licensee
- pursuant to Section 9.09. Alterations, modifications or amendments of a
- provision of this Agreement by Licensee shall not be binding unless such
- alterations, modifications or amendments are in writing and signed by
- authorized representatives of Vendor and Licensee.
-
- Section 9.03 -- Policy Statement: Licensee shall comply with the Policy
- Statement, if any. Vendor may modify the Policy Statement from time to time
- in the exclusive discretion of Vendor. Such modified Policy Statement shall
- be deemed accepted and approved by Licensee, shall apply to the Product and
- support services, if any, and shall be binding upon Licensee upon notice to
- Licensee pursuant to Section 9.08.
-
- Section 9.04 -- Severability: If a provision of this Agreement is rendered
- invalid, the remaining provisions shall remain in full force and effect.
-
- Section 9.05 -- Captions: The headings and captions of this Agreement are
- inserted for reference convenience and do not define, limit or describe the
- scope or intent of this Agreement or any particular section, paragraph or
- provision. Pronouns and nouns shall refer to the masculine, feminine,
- neuter, singular or plural as the context shall require.
-
- Section 9.06 -- Public Announcement: All public announcements of the
- relationship of Vendor and Licensee under this Agreement shall be subject to
- the prior written approval of Vendor.
-
- Section 9.07 -- Governing Law: This Agreement shall be governed by the laws
- of the State of Michigan without regard to any rules of conflict or choice of
- laws which require the application of laws of another jurisdiction, and venue
- shall be Ingham County and the State of Michigan.
-
- Section 9.08 -- Notice: All notices shall be in writing. Notices to Vendor
- shall be deemed delivered when delivered by commercial overnight delivery
- service, Certified or Registered Mail û Return Receipt Requested - or by hand
- to the address set forth below for Vendor Notices to Licensee shall be
- deemed delivered when delivered electronically, by commercial overnight
- delivery services, by Certified or Registered Mail û Return Receipt Requested
- û or by hand to the address set provided to Vendor upon registering the
- Product with Vendor for Licensee. Notices shall be deemed given on the date
- notice is delivered electronically (in case of notices delivered to Licensee)
- or on the date of receipt - as evidenced in the case of Certified or
- Registered Mail by Return Receipt. Notices delivered to Licensee
- electronically (including, without limitation, electronic mail) shall be
- deemed written notices.
-
- Vendor Address
- TechSmith Corporation 2405 Woodlake Drive
- Okemos, MI 48864
-
-
- Section 9.90 -- Waiver: Waiver of breach of this Agreement shall not
- constitute waiver of another breach. Failing to enforce a provision of this
- Agreement shall not constitute a waiver or create an estoppel from enforcing
- such provision. Any waiver of a provision of this Agreement shall not be
- binding unless such waiver is in writing and signed by the party waiving such
- provision.
-
- Section 9.10 -- Employee Pirating: Licensee shall not induce or solicit
- (directly or indirectly) any Associate to leave the employment of Vendor or
- engage the services of an Associate without the prior written consent of
- Vendor.
-
- Section 9.11 -- Relationship of the Parties: It is agreed that the
- relationship of the parties is primarily that of licensee and licensor.
- Nothing herein shall be construed as creating a partnership, an employment
- relationship, or an agency relationship between the parties, or as
- authorizing either party to act as agent for the other. Each party shall
- maintain its separate identity.
-
-
- Section 9.12 -- Litigation Expense: In the event of litigation arising out
- of this Agreement, each party shall pay its own costs and expenses of
- litigation or arbitration (excluding fees and expenses of arbitrators and
- administrative fees and expenses of arbitration).
-
- Section 9.13 -- Equitable Remedies: The parties hereby acknowledge that
- damages at law may be an inadequate remedy for Vendor. In addition to other
- rights which may be available, Vendor shall have the right of specific
- performance, injunction or other equitable remedy (including, but not limited
- to, the right to such equitable remedies prior to or pending arbitration) in
- the event of a breach or threatened breach of this Agreement by Licensee.
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