END USER SOFTWARE LICENSE AGREEMENT
This End User Software License Agreement (“Agreement”) contains the terms and conditions upon which Mimbus, Inc., a Delaware corporation, located at 100 S. State Street, Chicago, Illinois 60603 (hereinafter referred to as “Mimbus” or “LICENSOR”), grants to you (“LICENSEE”) a limited license to the Licensed Programs (as defined below). Please read this Agreement carefully. By clicking “I AGREE”, you acknowledge that you have read and accept the terms and conditions of this Agreement in its entirety.
IF YOU ARE ENTERING INTO THIS AGREEMENT WITHIN THE SCOPE OF YOUR EMPLOYMENT OR IN CONNECTION WITH YOUR ENGAGEMENT AS AN INDEPENDENT CONTRACTOR, THEN THE TERM “LICENSEE” INCLUDES YOUR EMPLOYER OR PRINCIPAL CONTRACTOR, AS APPLICABLE, AND YOU WARRANT AND REPRESENT TO MIMBUS THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH EMPLOYER’S OR PRINCIPAL CONTRACTOR’S BEHALF.
WHEREAS, LICENSOR is engaged in the development, manufacture and sale of certain virtual reality training simulators which incorporates software for such simulators that allows a user to simulate certain trade procedures (hereinafter referred to as “Licensed Programs”) and warrants that it has the property rights to such simulators and Licensed Programs for all purposes of this Agreement; and
WHEREAS, LICENSEE has leased, purchased, or borrowed Equipment (as defined below) pursuant to a separate agreement between LICENSOR and LICENSEE (“Equipment Agreement”) and in association with the use of said Equipment, the Licensed Programs are required, and LICENSEE desires to obtain a license to utilize such Licensed Programs pursuant to the terms of this Agreement; and
WHEREAS, LICENSOR is willing to provide LICENSEE with a license to utilize the Licensed Programs to the terms hereof;
NOW, THEREFORE, LICENSOR and LICENSEE agree as follows:
The following terms, when used in this Agreement with initial capital letters, shall have the respective meanings described in this Article:
- “Agreement” shall mean this End User Software License Agreement, any schedule, exhibit, or amendment, which is in writing and signed by both parties in existence as of the date of this Agreement or which may hereinafter be expressly incorporated by reference.
- “Confidential Information” shall mean the Licensed Programs, as defined below, in any embodiment including source code, and any other materials or information relating to the Licensed Programs received by LICENSEE from LICENSOR which are identified by LICENSOR, or LICENSEE otherwise has reason to know, as being proprietary or confidential to LICENSOR. Additionally, Confidential Information shall include, without limitation, all of the following LICENSOR- or LICENSEE-related information: technical and business information pertaining to inventions or products, research and development, client lists, supplier lists, production planning and scheduling methodologies, manufacturing and engineering processes, financial information, student information or data, employee skills and salaries, and marketing, production and future business plans.
- “License Fees” shall mean the amount charged to LICENSEE as defined in Section IV.
- “Equipment” shall mean certain simulation systems consisting of both software and hardware developed by Mimbus or its parent company for teaching and assessing knowledge and skills in the fields of welding, boiler-making, painting, blasting, carpentry, cabinet making, sawmill operation, production line operation, crane operation, electrician, construction machine operation, fork lift operation, and other building trades, and marketed and distributed under the trademarks and service marks: VULCAN, SIMSPRAY, WAVE NG, WOOD-ED TABLE, WOOD-ED FACTORY, VIRTUAL INDUS, FL-TRAINER; VORTEX, and 4DMU.
- “Licensed Programs” shall mean the computer software programs for use with the Equipment, as well as certain hardware designed, developed and manufactured by Mimbus or its parent, and associated with and necessary for proper functioning of the Equipment, listed in the General Conditions of Sale for Equipment (“Equipment Agreement”), attached and expressly incorporated by reference, and in any written amendments thereto, in machine readable, viewable, tangible or other form, including, but not limited to, schematics, manuals, flowcharts, logic diagrams, file layouts, and lists. The parties further agree that for the purposes of this Agreement only, all source code shall be the sole and exclusive property of LICENSOR, free from any claim or retention of rights in same on the part of the LICENSEE, and is, to the extent ever disclosed to LICENSEE, to be maintained in strict confidence.
- “Authorized User” shall mean any computer system or simulator user authorized by LICENSEE to Use a Licensed Program and to access or modify data on a Server, as defined below, or simulator.
- “Server” shall mean any computer system or simulator that is located at one site to support an authorized number of Authorized Users.
- “Use” shall mean: (i) transferring any part of any Licensed Program or simulator data to or from LICENSEE’s computer equipment or to or from any simulator to any storage unit for processing; (ii) executing and operating of any portion of any Licensed Program on a simulator; or (iii) accessing any Server or simulator for the purpose of obtaining or preparing information or data created through the execution of a Licensed Program.
II. GRANT OF LICENSE
- Pursuant to the terms and conditions of this Agreement, and within the scope of the LICENSOR’s authority between LICENSOR and its parent company, LICENSOR hereby grants to LICENSEE a non-exclusive, non-transferable license to Use the Licensed Programs as set forth in the corresponding Equipment Agreement, and any amendments to same, as such license is required to implement and use the Licensed Programs by Authorized Users for operation of the simulator(s). This license grant does not authorize LICENSEE to change or modify the Licensed Programs.
- LICENSOR hereby expressly reserves the right to audit usage of the Licensed Program at LICENSEE’s premises, after providing prior notice to LICENSEE, during normal business hours and to take all other necessary steps to review LICENSEE’s compliance with the terms of this Agreement so long as such are reasonable, including remote monitoring without any additional notice. If unauthorized Use is found, LICENSEE agrees to immediately terminate such usage upon receipt of written notification, or to take all such other reasonable actions that LICENSOR may require.
III. CONDITIONS OF LICENSE
- LICENSEE may, in accordance with the Article entitled “Proprietary and Intellectual Property Rights” copy, for backup purposes only, the Licensed Programs. LICENSEE may copy, for internal use only, any printed portion of instructional or operational manuals that are part of the Licensed Programs.
- Upon termination of this Agreement by LICENSOR pursuant to Section IX.A, hereof, LICENSEE shall, without delay, return to LICENSOR the original and all tangible or intangible copies of the Licensed Programs, if any, and shall so certify in writing to LICENSOR.
- LICENSEE agrees to provide LICENSOR with full, free and timely access to LICENSEE’s facilities, personnel, computer equipment, and Licensed Programs, at all reasonable times for the purpose of LICENSOR ensuring LICENSEE’s performance pursuant to this Agreement.
- Unless expressly permitted by this Agreement, LICENSEE: (a) shall not reproduce, reverse engineer, decompile, disassemble, transfer electronically or permit any other Use of the Licensed Programs not expressly authorized in Article II, nor shall it assist others to do so; and (b) acknowledges that any unpermitted act(s) or Use(s) shall constitute a material breach of this Agreement.
- LICENSEE agrees to maintain appropriate and current records of the number, location and disposition of each copy of the Licensed Programs, materials and specifications. All such copies shall be the property of LICENSOR.
IV. PRICING AND PAYMENT
- The Software License Fees are set forth in or incorporated in the amounts set forth in the Equipment Agreement.
- All taxes, which apply, including sales, use, or other taxes and duties, including penalties and interest, and, specifically excluding any income or corporate franchise taxes, shall be paid by LICENSEE.
V. RISK OF LOSS AND INSTALLATION
- Risk of loss of Licensed Programs shall pass to LICENSEE upon delivery.
- For purposes of the Agreement the Licensed Programs shall be deemed “delivered” upon receipt of the hardware portion of the Licensed Programs.
VI. INFRINGEMENT OF PROPRIETARY AND/OR INTELLECTUAL PROPERTY RIGHTS, INDEMNIFICATION
- LICENSOR and its parent company shall under no circumstances have any liability for any claim of patent, copyright, trade identity, or trade secret infringement, or any other infringement of proprietary rights or of LICENSOR’s lack of right, title or interest in the Licensed Programs caused by LICENSEE’s: (a) combined use of the Licensed Programs with third-party programs, products or data if such claim would have been avoided by the exclusive use of the Licensed Programs; (b) modification of the Licensed Programs by anyone other than Mimbus if such claim would have been avoided by the use of the unmodified Licensed Programs; or (c) use of other than the most current release of the Licensed Programs by LICENSOR if such claim would have been avoided by the use of such release as long as LICENSOR has made the most current release available to LICENSEE.
- Indemnification. LICENSEE agrees to indemnify, defend and hold Mimbus and its parent company and their collective employees and agents, harmless from any and all claims, actions, causes of action, damages, costs and expenses, including reasonable attorneys' fees, arising out of or resulting in any manner from LICENSEE's use of the Licensed Programs hereunder, including, but not limited to, claims for premiums, contributions or taxes payable under any workers' compensation, unemployment compensation, disability benefit, qualified or unqualified benefit plans, or tax withholding laws that may be alleged against LICENSEE, its employees or agents, with respect to such performance.
LICENSOR, its parent company or their collective employees and agents shall not be liable for any injury or damage to LICENSEE's employees or property unless such injury or damage is directly and solely caused by the negligence of LICENSOR, its parent company or such employee or agent acting within the scope of his or her employment or agency. LICENSEE agrees to indemnify, defend and hold LICENSOR, its parent company and their collective employees and agents, harmless from any and all claims, actions, causes of action, damages, costs and expenses, including reasonable attorneys' fees, arising out of or in consequence of LICENSEE's negligence, including but not limited to, any claims of liability imposed by law upon LICENSOR or its parent company for damages because of bodily injury, including death at any time resulting therefrom, sustained by any person or on account of damage to property, unless such injury or damage resulted from the direct and sole negligence of LICENSOR or its parent company.
VII. WARRANTY RESTRICTIONS
- The warranty for the Licensed Programs are as set forth in the Mimbus, Inc. Limited Warranty.
VIII. PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS
- The parties hereby acknowledge that: a) all intellectual property rights related to and derived from the Licensed Programs, as used by LICENSEE pursuant to this Agreement, including but not limited to patents, trademarks, copyrights, trade secrets, and the like, developed by LICENSEE or its employees, agents, subsidiaries, or licensees, are solely and exclusively owned by LICENSOR or its parent; and b) LICENSOR has been designated as exclusive dealer of the Licensed Programs in the US.
- All proprietary notices incorporated in, marked on or fixed to a Licensed Program, or other confidential information by LICENSOR, its parent or its suppliers, shall be duplicated by LICENSEE on all copies of all or any part of the Licensed Programs, and shall not be altered, removed, concealed or obliterated in any way. A copyright notice on a Licensed Programs shall not, of itself, constitute evidence of publication or public notice.
- LICENSEE shall have no right to use LICENSOR or its parent company’s trademarks, service marks, or other proprietary trade identifiers without receiving prior written approval.
- Unless otherwise agreed to in writing by LICENSOR, LICENSEE agrees to limit access to or use of the Licensed Programs to those employees, contractors, instructors, students, or affiliates actively employed, enrolled with, or engaged on behalf of LICENSEE.
- LICENSOR and LICENSEE agree during the term of this Agreement, and thereafter, to take all steps reasonably necessary to hold in trust and confidence all proprietary or confidential information. Nothing received by the parties will be considered to be the Confidential Information of the other party if: (1) it has been published or is otherwise readily available to the public other than by breach of this Agreement; (2) it has been rightfully received by the other party from a third party without confidential limitations; (3) it has been independently developed for the other party by personnel or agents having no access to the Confidential Information of either party; (4) it was known to either party prior to its first receipt from the other party; or (5) it has been disclosed by either party to a third party without restrictions on disclosure.
- Copyright and Patents. LICENSEE shall make prompt written disclosure to LICENSOR of all ideas, inventions, information, improvements, discoveries, writings, computer software, data, documents, notes, designs, drawings, materials and the like (hereinafter individually and collectively referred to as "Materials") made or conceived, or actually or constructively reduced to practice, during the term of this Agreement, whether solely or jointly with others, which refer to, or are suggested by, or result from any work which LICENSOR may do pursuant to this Agreement or from any information obtained by LICENSEE in discussions and meetings with employees of LICENSOR or its parent company. Furthermore, LICENSEE hereby assigns and agrees to assign all right, title, and interest in said Materials, regardless of whether so disclosed, to LICENSOR, and at the expense of LICENSOR agrees to assist LICENSOR in every proper way to protect said Materials including, but not limited to, signing patent and copyright applications, oaths or declarations, and assignments in favor of LICENSOR relating to said Materials, both in the United States and in any and all foreign countries. Any and all Materials, developed or produced by LICENSEE while under contract to LICENSOR will become the sole and exclusive property of LICENSOR, and shall have the right to use them for any purpose without any additional compensation to LICENSEE and all such copyrightable Materials are works made for hire and LICENSOR shall own the copyright in such Materials. LICENSEE agrees to not make the Materials developed pursuant to this Agreement and any information therein available to any third party. LICENSEE will be liable to LICENSOR for all damages, including reasonable attorneys' fees in the event the Materials, or information therein, is made available to a third party in any manner by LICENSEE.
If, in the development or production of the Materials LICENSEE incorporates elements from third party program(s), material or information, LICENSEE is responsible for obtaining at LICENSEE's own expense any and all releases necessary to utilize the Material in such fashion and will provide written assurance to LICENSOR that such releases and permission have been obtained.
- This Agreement is set for a non specified amount of time and may be terminated with or without cause by LICENSOR through written notice. This Agreement may be terminated for cause by either party through written notice if: (a) the other party files a petition in bankruptcy, has an involuntary petition in bankruptcy which is not dismissed within sixty (60) days after the filing, applies for or consents to the appointment of a trustee, receiver, custodian, or liquidator, or makes a general assignment for the benefit of creditors; or (b) the other party fails to make payment pursuant to the Equipment Agreement within fifteen (15) days after written notice that such payment is past due; (c) the other party breaches this Agreement and has not corrected the breach within sixty (60) days after written notice; or (d) the party receives notice of a breach of ARTICLE’s II, III, or IX of this Agreement.
- Upon termination of this Agreement by LICENSOR pursuant to Section IX.A, above, all licenses granted by LICENSOR to LICENSEE pursuant to this Agreement shall terminate with immediate effect. LICENSEE shall immediately cease using the Licensed Programs, whether or not modified or merged into other materials, program installation instructions and user manuals, and LICENSEE shall certify in writing that through its best efforts, LICENSEE has destroyed or returned to LICENSOR the original and all copies of the Licensed Programs, related materials and specifications received from LICENSOR or made by LICENSEE under this Agreement.
- Articles VII, VIII, IX, and X, shall survive any expiration or termination of this Agreement.
- Notices. Any notices or reports which are required or permitted under this Agreement shall be submitted in writing and shall be delivered by personal delivery, or by certified or registered mail with postage prepaid, return receipt requested, and shall be deemed to have been received upon the earlier or personal delivery, or five (5) days after deposit in the mail. Unless provided otherwise in writing, all notices shall be directed to the signatories of this Agreement at the respective addresses set forth at the beginning of this Agreement.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without giving effect to principles of conflict of law.
- Invalid Provisions; No Waiver. If any provision of this Agreement is declared to be invalid under any applicable statute or rule of law, the parties agree that such invalidity shall not affect the remaining portions of this Agreement. The failure of either party to exercise any right or option that is granted therein or to require the performance of any term of this Agreement or the waiver by either party of any breach of this Agreement, shall not prevent a subsequent exercise or enforcement of such term or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.
- Attorney’s Fees. In the event that suit is brought under this Agreement, LICENSOR shall be entitled to recover its reasonable attorneys’ fees and court costs.
- Assignment. LICENSEE may not assign, subcontract or delegate the performance under this Agreement, or any of its provision, without the express written consent of LICENSOR.
- Force Majeure. Neither party shall be responsible for delays or failures in performance resulting from acts beyond the control of such party. Such acts shall include, without limitation, acts of God, strikes or other labor disputes, riots, acts of war, governmental regulations superimposed after the fact, communication line failures, power failures, fires, earthquakes or other disasters.
- Entire Agreement. This Agreement is not subject to change or modification except by a written amendment signed by both parties.