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1 | .ND |
2 | .ps 14 | |
3 | .ft B | |
4 | .ce | |
5 | LICENSE AGREEMENT | |
6 | .ft R | |
7 | .sp 4 | |
8 | .ps 12 | |
9 | .vs 18 | |
10 | .PP | |
11 | THIS LICENSE AGREEMENT is made and entered into this ___________ day | |
12 | of _____________ , 19____ , by and between THE REGENTS OF THE UNIVERSITY | |
13 | OF CALIFORNIA, a California corporation, hereinafter called "LICENSOR", | |
14 | and _____________________________ , a _____________________ having | |
15 | its principal office at _____________________________________ , | |
16 | hereinafter called "LICENSEE"; | |
17 | .sp 2 | |
18 | .ps 10 | |
19 | .vs 12 | |
20 | .I | |
21 | .ce | |
22 | W I T N E S S E T H: | |
23 | .R | |
24 | .sp | |
25 | .PP | |
26 | \fI WHEREAS, \fR LICENSOR owns and is the proprietor of the copyright of a | |
27 | certain computer program entitled, ``Third Berkeley Software Distribution (3BSD)''; and | |
28 | .PP | |
29 | \fI WHEREAS, \fR LICENSEE desires to obtain from LICENSOR, and LICENSOR | |
30 | desires to grant to LICENSEE, a license to use the aforementioned | |
31 | computer program; | |
32 | .PP | |
33 | \fI NOW, \fR THEREFORE, in consideration of the mutual covenants, conditions | |
34 | and terms hereinafter set forth, and for other good and valuable | |
35 | consideration, LICENSOR hereby leases to LICENSEE the physical | |
36 | property described on annexed Schedule A ("Licensed Material") | |
37 | subject to a non-transferrable, nonexclusive license ("License"), | |
38 | which is hereby granted to LICENSEE, to use such Licensed Material | |
39 | upon the terms and conditions hereinafter set forth; and LICENSEE | |
40 | hereby accepts such lease subject to the License solely upon such | |
41 | terms and conditions. | |
42 | .PP | |
43 | 1. \fB Term. \fR The term of this Agreement shall commence on the | |
44 | date hereof, and, unless sooner terminated as hereinafter set forth, | |
45 | shall extend indefinitely. | |
46 | .PP | |
47 | 2. \fB Charges. \fR As a fee for the use of the Licensed Material, | |
48 | LICENSEE shall pay LICENSOR a duplication charge of two hundred | |
49 | dollars ($200.00). LICENSEE may obtain new releases of the Licensed | |
50 | Material as LICENSOR may from time to time make available at a | |
51 | duplication charge of two hundred dollars ($200.00). Such new | |
52 | releases as are purchased by LICENSEE shall by subject to the terms | |
53 | and conditions of this Agreement. | |
54 | Such fee is due and payable when this License Agreement is returned, | |
55 | signed by the LICENSEE, and with a copy of the LICENSEE's UNIX/32V\(dg | |
56 | Agreement. | |
57 | .PP | |
58 | Such fee does not include local, state or federal taxes, and | |
59 | LICENSEE hereby agrees to pay all such taxes as may be imposed | |
60 | upon LICENSEE or LICENSOR with respect to the ownership, leasing, | |
61 | licensing, rental, sale, purchase, possession or use of the | |
62 | Licensed Material. | |
63 | .PP | |
64 | 3. \fB Maintenance and Update Services. \fR Neither maintenance | |
65 | services nor update services are included in this Agreement. | |
66 | As used in the Agreement, the term "maintenance services" | |
67 | includes notice to LICENSEE of latent errors in the Licensed | |
68 | Material and rectification thereof. | |
69 | .PP | |
70 | 4. \fB Title. \fR LICENSEE agrees that the Licensed Material is, | |
71 | and shall at all times remain, the property of LICENSOR. | |
72 | LICENSEE shall have no right, title or interest therein or | |
73 | thereto except as expressly set forth in this Agreement. However, | |
74 | those portions of the Licensed Material which are modifications of UNIX/32V | |
75 | .FS | |
76 | \(dg | |
77 | UNIX is a trademark of Bell Laboratories | |
78 | .FE | |
79 | and are so indicated on schedule A, are also governed by the LICENSEE's agreement | |
80 | with Western Electric. | |
81 | .PP | |
82 | 5. \fB Duplication and Disclosure. \fR LICENSE agrees that all | |
83 | Licensed Material shall be held in confidence, that such | |
84 | Licensed Material is provided for the exclusive use of LICENSEE, | |
85 | on the following CPU, namely ____________________ , | |
86 | Serial No. ________________________________ located at its | |
87 | _______________________________ facility, and any single replacement | |
88 | thereof, provided, that written notice of the replacement and its | |
89 | Serial Number is first given to LICENSOR. The LICENSEE warrants that | |
90 | this machine is licensed, by agreement with Western Electric, for | |
91 | using of the UNIX timesharing system, version 7 (UNIX/32V), dated | |
92 | _________________. | |
93 | The Licensed Material 3BSD | |
94 | shall not be duplicated, except as | |
95 | reasonably necessary to LICENSEE's use of the Licensed Material | |
96 | under this Agreement or disclosed to others in whole or in part | |
97 | without the express written permission of LICENSOR. | |
98 | IN PARTICULAR, LICENSEE AGREES THAT THE SOURCE FORM OF LICENSED | |
99 | MATERIAL SHALL NOT BE DISCLOSED TO OTHER LICENSEES WHETHER | |
100 | OR NOT SUCH OTHER LICENSEES HAVE CURRENT VERSIONS OF THE | |
101 | LICENSED MATERIAL. | |
102 | Such prohibitions on disclosure shall not apply to disclosure | |
103 | by LICENSEE to its employees and consultants if and to the extent | |
104 | that such disclosure is reasonably necessary to LICENSEE's | |
105 | use of the Licensed Material and provided that LICENSEE shall | |
106 | take all reasonable steps (including, but not limited to, | |
107 | all steps that LICENSEE takes with respect to information, data, | |
108 | and other tangible and intangible property of its own that it | |
109 | regards as confidential or proprietary) to ensure that such | |
110 | Licensed Material is not disclosed or duplicated in | |
111 | contravention of the provisions of the Agreement by such | |
112 | employees or consultants. | |
113 | .PP | |
114 | 6. \fB Warranty and Limitation of Liability. \fR LICENSOR MAKES | |
115 | NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER | |
116 | WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE CONDITION OF THE | |
117 | LICENSED MATERIAL, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY | |
118 | PARTICULAR PURPOSE. | |
119 | .PP | |
120 | LICENSOR shall not be liable for, and LICENSEE hereby assumes the | |
121 | risk of and will release and forever discharge LICENSOR, its agents, | |
122 | officers, assistants and employees thereof either in their | |
123 | individual capacities or by reason of their relationship to | |
124 | LICENSOR and its successors in respect to any expense, claim, | |
125 | liability, loss or damage (including any incidental or | |
126 | consequential damage) either direct or indirect, whether | |
127 | incurred, made or suffered by LICENSEE or by third parties, in | |
128 | connection with or in any way arising out of the furnishing, | |
129 | performance or use of the Licensed Material. | |
130 | In any event LICENSOR's liability to LICENSEE on any ground, | |
131 | including but not limited to negligence, shall not exceed a sum | |
132 | equal to the fee paid to LICENSOR by the LICENSEE hereunder | |
133 | except as provided in paragraph 7 hereunder entitled "Patent | |
134 | and Copyright Indemnity". | |
135 | .PP | |
136 | 7. \fB Patent and Copyright Indemnity. \fR LICENSOR will | |
137 | defend the LICENSEE against a claim that a program supplied | |
138 | hereunder infringes a U.S. patent or copyright, LICENSOR will | |
139 | pay the resulting cost and damage awards provided | |
140 | that: | |
141 | .in +5 | |
142 | .IP a. | |
143 | The LICENSEE promptly notifies LICENSOR in writing of the claim; and | |
144 | .IP b. | |
145 | LICENSOR has sole control of the defense and all related settlement | |
146 | negotiations. | |
147 | .in -5 | |
148 | .PP | |
149 | If such claim has occurred, or in LICENSOR'S opinion is likely to | |
150 | occur, the LICENSEE agrees to accept noninfringing replacement programs | |
151 | from LICENSOR, if available, or, if not, to return the program on | |
152 | written request by LICENSOR. | |
153 | The LICENSEE will pay only those charges which were payable prior to | |
154 | the date of such return. | |
155 | LICENSOR has no liability for any claim based upon the combination, | |
156 | operation or use of any program supplied hereunder with equipment or | |
157 | data not supplied by LICENSOR, or with any program other than or in | |
158 | addition to the program supplied by LICENSOR if such claim would | |
159 | have been avoided by use of another program whether or not | |
160 | capable of achieving the same results, or based upon modification | |
161 | of any program supplied hereunder. | |
162 | .PP | |
163 | This indemnity does not cover any material originally supplied to LICENSEE by | |
164 | Western Electric under LICENSEE's UNIX/32V license. | |
165 | .PP | |
166 | The foregoing states the entire obligation of LICENSOR with respect | |
167 | to infringement of patents and copyrights. | |
168 | .PP | |
169 | 8. \fB Alterations and Modifications. \fR LICENSEE shall make | |
170 | any alterations, variations, modifications, additions or | |
171 | improvements to the Licensed Material, at its own risk and | |
172 | expense for its own use and merge it into other program material | |
173 | to form an updated work, provided that, upon discontinuance of | |
174 | the License for such Licensed Material the Licensed Material | |
175 | supplied by LICENSOR will be completely removed from the updated | |
176 | work and dealt with under this Agreement as if permission to | |
177 | modify had never been granted. | |
178 | Any portion of the Licensed Material included in an updated work | |
179 | shall be used only on the designated CPU and shall remain | |
180 | subject to all other terms of this agreement. | |
181 | .PP | |
182 | 9. \fB Inspection. \fR LICENSOR shall have the right at all | |
183 | reasonable times to inspect the premises of LICENSEE subject | |
184 | to all LICENSEE'S industrial security and other rules then in | |
185 | effect at LICENSEE'S premises; to determine and verify | |
186 | LICENSEE'S compliance with this Agreement. | |
187 | .PP | |
188 | 10. \fB Default. \fR If with regard to any of the Licensed | |
189 | Material, LICENSEE fails to pay any charge provided for herein | |
190 | within ten (10) days after written notice that the same is | |
191 | overdue and payable, or if LICENSEE with regard to any item or | |
192 | items of Licensed Material fails to observe, keep or perform | |
193 | any other provisions of the Agreement required to be observed, kept | |
194 | or performed by LICENSEE, LICENSOR shall have the right to | |
195 | exercise any one or more of the following remedies: | |
196 | .in +5 | |
197 | .IP (a) | |
198 | To terminate the License herein granted; | |
199 | .IP (b) | |
200 | To declare the entire amount of any fee payable under Paragraph 2 | |
201 | hereinabove for the entire term of this Agreement immediately due | |
202 | and payable as to any or all items of Licensed Material without | |
203 | notice or demand to LICENSEE; | |
204 | .IP (c) | |
205 | To sue for and recover all fees then accrued or thereafter accruing, | |
206 | with respect to any items of Licensed Material; | |
207 | .IP (d) | |
208 | To take possession of any or all items of Licensed Material without | |
209 | demand or notice, wherever they may be located, without court order | |
210 | or other process of law. LICENSEE hereby waives any and all | |
211 | damages occasioned by such taking of possession. | |
212 | No taking of possession shall constitute a termination of this | |
213 | Agreement as to any item of Licensed Material unless LICENSOR | |
214 | expressly so notifies LICENSEE in writing; | |
215 | .IP (e) | |
216 | To terminate this Agreement as to any or all items of | |
217 | Licensed Material; | |
218 | .IP (f) | |
219 | In the event of any unauthorized use of the Licensed Material, | |
220 | including, but not limited to, unauthorized disclosure to | |
221 | third persons or use by LICENSEE of the material at facilities | |
222 | other than those identified in Paragraph 5 above, LICENSOR | |
223 | shall at its option have the right in addition to its other | |
224 | remedies, to recover from LICENSEE an amount equal to (i) the | |
225 | sum LICENSOR would have charged the person or persons obtaining | |
226 | the benefit of such unauthorized use of the Licensed Material, | |
227 | plus (ii) any amount received by LICENSEE on account of | |
228 | such unauthorized use; | |
229 | .IP (g) | |
230 | To have the obligations of LICENSEE hereunder specifically | |
231 | performed and to have any threatened or actual breach by | |
232 | LICENSEE enjoined, it being acknowledged with respect to the | |
233 | obligations of LICENSEE under Paragraph 5 hereof that such | |
234 | equitable relief is the only adequate remedy; | |
235 | .IP (h) | |
236 | To pursue any other remedy at law or in equity. Notwithstanding | |
237 | any said repossession, or any other action which LICENSOR may | |
238 | take, LICENSEE shall be and remain liable for the full performance | |
239 | of all obligations on his/her part to be performed under this | |
240 | Agreement. All such remedies are cumulative, and may be | |
241 | exercised concurrently or separately. | |
242 | .in -5 | |
243 | .PP | |
244 | 11. \fB Legal Expenses. \fR In case legal action is taken by | |
245 | either party to enforce this Agreement, all costs and expenses, | |
246 | including reasonable attorney's fees, incurred by the | |
247 | prevailing party in exercising any of its rights or | |
248 | remedies hereunder or in enforcing any of the terms, | |
249 | conditions, or provisions hereof shall be paid by the other party. | |
250 | .PP | |
251 | 12. \fB Assignment. \fR Without the prior written consent of | |
252 | the other, neither party shall (a) assign, transfer, pledge or | |
253 | hypothecate this Agreement, the Licensed Material or any part | |
254 | thereof or any interest therein or (b) sublet or lend the | |
255 | Licensed Material or any part thereof, or permit the Licensed | |
256 | Material or any part thereof to be used by anyone except as | |
257 | specifically authorized by Paragraph 5 above. | |
258 | Any consent to any of the foregoing prohibited acts shall | |
259 | apply only in the given instance and shall not be deemed a | |
260 | consent to any subsequent like act nor a consent to any | |
261 | other act. In the event either party consents to any prohibited | |
262 | act hereunder, the other shall, without further request, apprise | |
263 | any third party receiving Licensed Material or the use thereof | |
264 | of the restrictions upon use contained in this Agreement. | |
265 | Subject always to the foregoing, this Agreement shall bind and | |
266 | inure to the benefit of the parties hereto, their successors | |
267 | and assigns. | |
268 | .PP | |
269 | 13. \fB Severability. \fR If any part, term or provision of | |
270 | this Agreement shall be held illegal, unenforceable or in conflict | |
271 | with any law of a federal, state or local government having | |
272 | jurisdiction over this Agreement, the validity of the remaining | |
273 | portions or provisions shall not be affected thereby. | |
274 | .PP | |
275 | 14. \fB Governing Law. \fR This Agreement shall be construed and | |
276 | enforced according to the laws of California as applied to contracts | |
277 | made and to be performed in California. | |
278 | .PP | |
279 | 15. \fB Paragraph Headings. \fR The headings herein are inserted for | |
280 | convenience only and shall not be construed to limit or modify | |
281 | the scope of any provision of this Agreement. | |
282 | .PP | |
283 | 16. \fB Termination. \fR Upon termination of the lease herein, | |
284 | all Licensed Materials and copies thereof shall be returned to | |
285 | LICENSOR. | |
286 | .PP | |
287 | 17. \fB Installations. \fR Under the terms hereof, LICENSEE is | |
288 | entitled to only one installation of Licensed Materials. | |
289 | Additional installations requested by LICENSEE will be made by | |
290 | LICENSOR under the terms and conditions to be separately | |
291 | negotiated. | |
292 | .PP | |
293 | 18. \fB Entire Agreement. \fR This Agreement contains all the | |
294 | agreements, representations, and understandings of the parties hereto | |
295 | and supersedes any previous understandings, commitments or | |
296 | agreements, oral or written. | |
297 | .sp 4 | |
298 | .PP | |
299 | IN WITNESS WHEREOF, the parties hereto have executed this | |
300 | Agreement as of the day and year first above written. | |
301 | .sp 3 | |
302 | .in +30 | |
303 | THE REGENTS OF THE UNIVERSITY | |
304 | OF CALIFORNIA | |
305 | .sp 4 | |
306 | By _________________________ | |
307 | (Licensor) | |
308 | .sp 4 | |
309 | By _________________________ | |
310 | (Licensee) | |
311 | .in -30 | |
312 | ||
313 |