Blast Code, Inc. Software License Agreement
IMPORTANT - PLEASE READ CAREFULLY
BLAST CODE, INC. (DEFINED BELOW) IS WILLING TO LICENSE THE SOFTWARE (DEFINED BELOW) ONLY TO THE CUSTOMER (DEFINED BELOW) AND ONLY IF ALL OF THE TERMS CONTAINED IN THIS SOFTWARE LICENSE AGREEMENT ARE ACCEPTED BY THE CUSTOMER. BY INSTALLING AND/OR USING AND/OR OTHERWISE ACCESSING THE SOFTWARE, THE CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IT SHALL BE BOUND BY THE TERMS CONTAINED HEREIN.
Article 1 - Definitions
a) 'Activation Date' means the date upon which the Software shall be deemed to be activated, which shall be the earlier of: (i) the date upon which BLAST CODE, INC. or Reseller provides the Enabling Mechanism to customer; (ii) the date upon which BLAST CODE, INC. provides the Enabling Mechanism to Reseller for delivery to Customer; or (iii) the ninetieth (90th) day following Delivery;
b) 'Agreement' means this BLAST CODE, INC. Software License Agreement;
c) 'BlastCode' means BLAST CODE, INC.
d) 'Customer' means the end user of the Software that acquires the License pursuant to this Agreement, as identified on the Order;
e) 'Delivery' means delivery of the media upon which the Software is provided to a carrier by BlastCode, its' supplier, representative, agent or fulfillment services provider for carriage to Customer, or, where the Software is to be delivered via download, at such time when the Software is made available to Customer for download;
f) 'Enabling Mechanism' means a mechanism by which the Software is activated or by which Customer can activate the Software;
g) 'License' shall have the meaning ascribed thereto in Article 2(a);
h) 'Materials' means any and all documentation and/or material provided to Customer by BlastCode or Reseller in relation to the Software; including digital delivery;
i) 'Order' means either: (i) the purchase order of Customer relating to the acquisition of one or more Licenses, which has been accepted by BlastCode or by a Reseller in BlastCode's or Reseller's sole discretion, as applicable; or (ii) a quotation that has been issued by BlastCode or a Reseller in respect of one or more Licenses, which has been accepted by Customer in accordance with and subject to its terms;
j) 'Original Site' means the Customer site identified on the Order;
k) 'Proprietary Material' means the Software and the Materials, including any portion thereof in any embodiment, including copies thereof, and any other information or data relating to the Software, in written, graphic, or machine readable form, received by Customer from BlastCode or from an authorized Reseller, including, but not limited to, designs, improvements, concepts and ideas, provided, however, that Proprietary Material does not include information and/or data that is rightfully in Customer's possession prior to its receipt from BlastCode or Reseller;
l) 'Reseller' means an authorized reseller of BlastCode, which has been authorized to distribute Software within a given territory or sales jurisdiction.
m) 'Software' means the BlastCode software product(s), in object code form, described on the Order and provided to Customer pursuant to this Agreement and shall include any and all updates or upgrades thereto subsequently acquired by or provided to Customer;
n) 'Third Party Material' means any software and/or documentation and/or material provided to Customer with the Software or in relation thereto, which has been produced and/or licensed by a third party and subsequently provided and/or made available and/or licensed to BlastCode by such third party for inclusion with the Software; and
o) 'Warranty Period' means the period commencing upon Delivery and ending upon the earlier of: (i) the thirtieth (365th) day after the Activation Date; or (ii) the three hundred and sixty fifth (365th) day after Delivery.
Article 2 - Software Rights
a) License Grant. BlastCode has granted to Customer and Customer has accepted, a non-exclusive, non-transferable, non-sub licensable, limited license to use the Software for one (1) year from date of purchase, subject to the terms and conditions of this Agreement (the 'License').
b) Initial Electronic Mail Technical Support. BlastCode may, from time to time, elect to provide a period of initial electronic mail technical support services to Customer following acquisition of Software. BlastCode reserves the right to amend or terminate such policy at any time in its sole discretion, without notice. BlastCode's current policy is that, for a period of thirty (30) days from the Activation Date, BlastCode shall provide Customer with access to BlastCode's electronic mail technical support services in relation to the Software, where available. Unless Customer otherwise purchases support or maintenance services from Blastcode or a Reseller and with the sole exception of the above-noted temporary access to the electronic mail technical support, Customer shall not be entitled to any form of electronic mail technical support services, software maintenance services or products relating to the Software.
c) Installation Location. Use of the License shall be limited to the Original Site or any other Customer site. In the case of a 'floating' or 'network' License, Customer may install the Software on one local area network at the Original Site and Customer may simultaneously operate multiple copies of the Software on any computer directly connected to the applicable file server, provided that the number of copies of the Software operating simultaneously does not exceed the total number of floating Licenses acquired by Customer. Relocation of the Software may only be done with the express prior written consent of BlastCode, and may be subject to a relocation fee. No relocation licenses will be issued after the end of the warranty period.
d) Licenses Non-Transferable. Licenses shall not be transferred without the prior written consent of BlastCode, which may be granted or withheld in BlastCode's sole and absolute discretion. If such transfer is authorized, Customer agrees to provide any and all information reasonably requested by BlastCode relating to such transfer and Customer shall promptly execute and/or have executed by the proposed transferee any and all documentation provided by BlastCode required to effect such transfer.
e) Back-Up Installations. In the event of a major malfunction causing the specified computer hardware on which the Software has been installed to become inoperable for an extended period of time, Customer may install the Software on a back-up system on a temporary basis during such malfunction. Customer agrees to promptly notify BlastCode of any such back-up use and specify the location of the back-up system.
f) Internal Use Only. Customer may use the Software only in connection with operation and management of Customer's own internal business, subject to the terms hereof. Customer is not authorized to grant sublicenses to use the Software nor to permit other persons to use the Software on a time-sharing or any other basis.
g) Customer Responsibilities. Customer shall be exclusively responsible for the supervision, management and control of its use of the Software, including, but not limited to: (i) selection of the Software to achieve Customer's intended results; (ii) determining the appropriate use and establishing the limitations of the Software in Customer's operations; (iii) assuring operation of the Software by qualified, trained personnel, in the specified computer environment, including proper machine hardware configuration and operating system software; (iv) assuring proper operating methods; (v) establishing adequate back-up plans to prevent loss of data in the event of a malfunction of the Software; and (vi) implementing sufficient procedures and checkpoints to satisfy its requirements for security and to assure accuracy of input and output.
h) License Termination on Non-Payment. BlastCode reserves the right to disable the Software and/or terminate the License upon written notice if Customer fails to pay either Reseller or BlastCode for the License pursuant to the terms of the Order.
Article 3 - Protection of Proprietary Material
a) Ownership. BlastCode and/or its suppliers and/or its licensors retain all right, title, and interest in and to all Proprietary Material (including, without limitation, all rights under any applicable copyrights, patents, trademarks and trade secrets) and to all copies thereof made by Customer.
b) Reverse Engineering. Customer shall not reverse compile, reverse engineer or disassemble the Software, except to the extent that BlastCode is not permitted by law to exclude or limit such rights. Customer shall not use the Software for the purpose of developing, modifying or improving a software product without the express prior written consent of BlastCode.
c) Proprietary Material Confidential. Customer acknowledges that the Proprietary Material is confidential and constitutes a valuable asset of BlastCode and/or its suppliers and/or licensors and shall not disclose, publish, display or otherwise make available to any persons any of the Proprietary Material or copies thereof without BlastCode's prior written consent.
d) Limitation on Reproduction. Customer shall not copy or reproduce any of the Proprietary Material, except: (i) in the ordinary course of exercising its rights hereunder; (ii) for back-up purposes; or (iii) with the express prior written consent of BlastCode.
e) Limitation of Access, Disclosure and Use. Customer shall not use any Proprietary Material for any purpose not specifically authorized in this Agreement. Customer shall limit the use of and access to the Software and other Proprietary Material to its bona fide employees and/or consultants whose use of or access to such Proprietary Material is necessary to Customer's use of the Software (in accordance with the terms hereof) and Customer shall take appropriate action, by agreement, instruction or otherwise, to protect the Proprietary Material from unauthorized publication, disclosure or use.
f) Notices. Customer shall not remove any copyright, intellectual property or proprietary rights notice(s) included in or on any Proprietary Material and shall reproduce all such notices on any permitted copies made of any Proprietary Material.
g) Inspection. BlastCode shall have the right to inspect, upon reasonable prior notice and during normal business hours, any Customer location at which any Proprietary Material is used or kept to ensure or confirm compliance with the terms of this Agreement.
h) Irreparable Harm. Customer acknowledges and agrees that in the event of any breach of its obligations under this Article, BlastCode will suffer irreparable harm of a nature that is not compensable by damages and BlastCode shall be entitled to seek injunctive or other equitable relief on an expedited basis.
Article 4 - Warranty and Liability
a) Limited Warranty. During the Warranty Period and subject to the provisions of this Article, BlastCode warrants as follows: (i) the media upon which the Software is provided to Customer, if any, shall be free of material defect; and (ii) the Software shall reasonably conform to the specifications contained in the Software documentation furnished to Customer.
b) Remedies. BlastCode's sole responsibility under the limited warranty provided for in Article 4(a) shall be, at its election, to: (i) replace the media upon which the Software has been provided to Customer, provided that Customer first returns the allegedly defective media to BlastCode; (ii) correct or replace the Software or that portion of the Software that fails to conform with the provided specification; or (iii) refund the purchase price paid by Customer for the License.
c) Disqualifying Events. Customer acknowledges and agrees that the limited warranty provided in Article 4(a) shall be invalidated and Customer shall have no claim whatsoever hereunder if: (i) Customer fails to report in writing to BlastCode any defect or error claimed to be a breach of warranty during the Warranty Period; (ii) the Software or the media upon which the Software is provided is misused; (iii) the Software or the media upon which the Software is provided is damaged, altered or affected by accident, neglect, misuse or other abuse; (iv) the claimed defect or error has been caused, in whole or in part, by persons other than BlastCode; or (v) if the Software has been installed on a system that has not been certified by BlastCode as compatible with the Software at the time of acceptance of the Order.
d) THE LIMITED WARRANTY SET FORTH IN THIS ARTICLE 4 IS THE ONLY WARRANTY MADE BY BLASTCODE WITH RESPECT TO THE SOFTWARE AND/OR THE LICENSE. BLASTCODE MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
e) IN NO EVENT SHALL BLASTCODE'S AND/OR BLASTCODE'S AFFILIATES' TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE AND/OR THE LICENSES EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE LICENSES HEREUNDER. IN NO EVENT SHALL BLASTCODE BE LIABLE TO CUSTOMER FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY CLAIMS RELATING TO LOST PROFITS, BUSINESS OR OPPORTUNITIES, EVEN IF BLASTCODE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE.
Article 5 - Intellectual Property
BlastCode shall defend or, at its option, settle, any claim or proceeding brought against Customer to the extent that it is based on an assertion that the Customer's authorized use of the Software constitutes direct infringement of any United States or Canadian copyright or patent(s) registered on or before the date of the Order, and shall indemnify Customer against all reasonable costs, damages and expenses finally awarded against Customer which result from any such claim, provided that Customer notifies BlastCode promptly in writing of any such claim or proceeding and gives BlastCode full and complete authority, information and assistance to defend such claim or proceeding and all negotiations for a compromise or settlement. BlastCode shall have no liability or obligation to Customer hereunder for any patent or copyright infringement or claim thereof based upon: (i) the combination of the Software with other products not furnished by BlastCode; (ii) any addition to or modification of the Software made after installation by any person or entity other than BlastCode; or (iii) any software or other technology not claimed to be owned by BlastCode, including without limitation the Third Party Material. BlastCode shall have no obligation hereunder for any costs incurred by Customer without BlastCode's express prior written authorization. If the Software or any part thereof becomes, or in BlastCode's opinion is likely to become, the subject of a claim of infringement, BlastCode shall have the right, at BlastCode's option and expense, to (i) procure for Customer the right to continue using the Software, (ii) replace or modify the Software so that it becomes non-infringing, or (iii) refund the amounts actually paid to BlastCode by Customer for the License, less a reasonable allowance to provide for use of the Software by Customer prior to the date of the refund. The provisions of this Article state the sole, exclusive and entire liability of BlastCode and the sole, exclusive and entire remedy of Customer, with respect to any claim of patent or copyright infringement with respect to the Software, and any part thereof.
Article 6 - Term and Termination
a) Term. This Agreement takes effect on the date on which the Order is received and accepted by BlastCode or a Reseller and shall remain in effect unless terminated as provided herein. Notwithstanding the foregoing, in the event that the Software is provided to Customer for evaluation and/or demonstration purposes, this Agreement shall be effective from the date such Software is provided to Customer until the date of termination of such evaluation or demonstration, as determined by BlastCode in its sole and absolute discretion.
b) Termination. If Customer shall fail to perform or be in breach of any of its obligations hereunder, BlastCode may terminate this Agreement and the License provided hereunder, by giving written notice of termination to Customer, which shall be effective immediately upon its' sending. This Agreement and the License granted hereunder shall terminate automatically and without notice if Customer should cease to carry on its business as a going concern in the ordinary course, including any act or omission constituting bankruptcy, the appointment of a trustee, liquidator or receiver for the assets of Customer, or the taking advantage of any legislation providing protection of Customer from its creditors.
c) Consequences of Termination. Within five (5) days after any termination of this Agreement, Customer shall, at BlastCode's election, deliver or destroy all Proprietary Material, including all copies thereof, within its possession, custody or control. Customer shall delete or destroy any and all such Proprietary Material that is stored in any computer software or storage facility that, for any reason, cannot be delivered to BlastCode. Customer expressly represents and warrants that it shall delete or destroy any and all such information and data that is subsequently detected or discovered. An executive officer of Customer shall certify in writing to BlastCode that all Proprietary Material has been so destroyed or returned. Articles 1, 3, 4, 6(c), and 7 - 10 hereof shall survive any termination of this Agreement.
Article 7 - Government End Users
This Article applies if the Software is acquired directly or indirectly on behalf of a unit or agency of the United States Government. For civilian agencies: the Software was developed at private expense and is 'restricted computer software', submitted with restricted rights in accordance with subparagraphs (a) through (d) of the Commercial Computer Software - Restricted Rights clause of FAR 52.227-19 (June 1987) and its successors; and it is unpublished and all rights are reserved under the copyright laws of the United States. For units of the Department of Defense (DoD), the Software is licensed only with 'Restricted Rights' as that term is defined in the DoD Supplement to the FAR, clause 252.227-7014 (June 1995), Rights in Technical Data and Computer Software and its Successors (including clause 252.227-7014(b)(3) (1994)), and use, duplication or disclosure is subject to the restrictions set forth therein.
Article 8 - Third Party Material
The parties hereto expressly acknowledge and agree that, notwithstanding any other provision hereof, BlastCode makes no warranties whatsoever with respect to the Third Party Material and Customer acknowledges and agrees that Customer's rights and obligations with respect to such Third Party Material may be governed by the terms of a separate and/or supplementary license agreement, which may be provided and/or made available by BlastCode.
BLASTCODE MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO THE THIRD PARTY MATERIAL, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANY OTHER PROVISION HEREOF, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BLASTCODE NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY WHATSOEVER ARISING OUT OF OR IN RELATION TO THE THIRD PARTY MATERIAL.
Article 9 - Academic and Educational Licenses
If Customer acquired the Software pursuant to one of BlastCode's academic or educational access programs (including, without limitation, student and/or instructor access programs) as they may exist from time to time and which shall be defined by BlastCode in its sole discretion from time to time, the following additional restrictions apply: Customer shall use the Software for educational purposes only and under no circumstances shall Customer use or permit others to use the Software in any manner for a commercial purpose or in respect of a for-profit enterprise of any kind. If Customer is a training or educational institution or an instructor at such an institution and acquired the Software pursuant to an BlastCode; program designed to afford access to such Software to enable Customer to train others to use the Software, then Customer shall use the Software for educational purposes only and only as incorporated into such training or educational programs or curricula (the 'Training Programs'). For clarity, if the third parties being trained by Customer pursuant to the Training Programs pay to Customer a fee for such training, the receipt of such payment by Customer shall not in itself constitute a violation by Customer of the non-commercial use restrictions contained in this Article.
Article 10 - General Provisions
a) Entire Agreement, Severance. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof. Neither party shall be bound by or be liable for any alleged representation, promise, inducement or statement of intention not set forth herein and no waiver, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing and signed by the parties. Any provisions of the Order that are in any way inconsistent with or in addition to the terms and conditions of this Agreement shall not be binding upon BlastCode and BlastCode's failure to object to any such provision or processing or acceptance of such Order shall not be construed as a waiver of the terms and conditions of this Agreement nor as an acceptance of any such provisions. The failure of either party to require performance of any provision hereof shall not affect the right at a later time to enforce such provision. In the event that one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, no other provisions contained in the Agreement shall be affected.
b) Evaluation or Demonstration Licenses. In the event that the Software is provided to Customer for evaluation and/or demonstration purposes, Articles 2(b), 4(a), 4(b), 4(c) and 5 shall not apply. All Software provided for evaluation and/or demonstration purposes is provided 'as is' and without warranties of any kind.
c) Governing Law / Export. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California and the federal laws of the United States applicable therein for purposes of any action commenced under this Agreement or with respect to any tort committed or alleged to be committed in the performance of this Agreement. No choice of law rules of any jurisdiction shall apply hereto. The parties hereto expressly waive any right they have to a jury trial and agree that any court proceeding under this Agreement shall be tried by a judge without a jury. Customer shall at all times comply with all U.S., Canadian, foreign and local export laws and regulations, as applicable, with respect to the acquisition, shipment or receipt of the Software.
d) Notices. Any notice or other document required or permitted to be given hereunder shall be validly given if delivered personally (including courier service) or by prepaid registered mail, return receipt requested or sent by facsimile transmission to the addressee thereof. Notices shall be deemed received three (3) days after mailing in the case of certified mail, and on the next business day in the case of courier delivery or facsimile transmission, except a notice of termination, which is governed by Article 6(b). Notices shall be sent to Customer at the address specified on the Order. Notices shall be sent to BlastCode as follows: BLAST CODE, INC. 3708 Spencer Street, Suite 100, Torrance, California; Fax (310) 765-4356; Attn: Office of the General Counsel.
e) Headings. Article headings used in this Agreement are for reference purposes only and shall not be used in the interpretation of this Agreement.
f) Enurement. This Agreement shall be binding upon and enure to the benefit of the parties and their respective successors, permitted assigns and legal representatives, provided, however, that the rights and obligations of Customer hereunder may not be assigned, sublicensed or otherwise transferred, in whole or in part, without the prior written consent of BlastCode, which may be granted or withheld by BlastCode in its sole and absolute discretion.