SOFTWARE LICENSE AGREEMENT ("Agreement") is made and entered into this
___ day of_____ , 199__ (the "Effective Date") by and between The University
of Texas ("University"), a component of The University of Texas System ("System")
and , a corporation having offices at ("Licensee").
University is the owner of, or has acquired rights to, the
Software and Documentation (as defined below).
University desires to grant to Licensee and Licensee desires to
obtain from University a(n) (non)exclusive license to use the Software and
Documentation solely in accordance with the terms and on the conditions set
forth in this Agreement.
THEREFORE, the parties hereto agree as follows:
"Designated Equipment" shall mean the hardware products
identified on Exhibit "A" with which the Software is licensed for use.
"Documentation" shall mean all manuals, user documentation, and
other related materials pertaining to the Software which are furnished to
Licensee by University in connection with the Software.
Fee" shall mean
shall mean the computer programs in machine readable object code form listed
in Exhibit "A" attached hereto and any subsequent error corrections or updates
supplied to Licensee by University pursuant to this Agreement. Exhibit "A" may
be amended from time to time by the parties in writing.
GRANT OF RIGHTS.
License granted for Software under this Agreement authorizes Licensee on a
nonexclusive basis to use the Software on the number of primary systems of
Designated Equipment identified on Schedule A hereto for the license term set
forth on Schedule A. The Software shall be used only on such primary systems
if they are operating properly. If any primary system is down, the Software
may be used on a backup system for that primary system.
Software. University shall deliver to Licensee a master copy of the Software
licensed hereunder in object code form, suitable for reproduction, in
electronic files only.
Documentation. University shall deliver copies of Documentation. [Note:
Where Documentation can also be delivered electronically, combine 3.1 and
3.2 into one provision.]
Error Corrections and Updates. University will provide Licensee with error
corrections, bug fixes, patches or other updates to the Software licensed
hereunder in object code form to the extent available in accordance with
University's release schedule for a period of one (1) year from the date of
Other Modifications. Licensee may, from time to time, request that
University incorporate certain features, enhancements or modifications into
the Software. University may, in its sole discretion, undertake to
incorporate such changes and distribute the Software so modified to all or
any of University's licensees.
Title to Modifications. All such error corrections, bug fixes, patches,
updates or other modifications shall be the sole property of University.
Printed Matter. Except as specifically set forth herein, no Software or
Documentation which is provided by University pursuant to this Agreement in
human readable form, such as written or printed documents, shall be copied
in whole or in part by Licensee without University's prior written
agreement. Additional copies of printed materials may be obtained from
University at the charges then in effect.
Machine Readable Matter. Except as specifically set forth herein, any
Software provided in machine readable form may not be copied by Licensee in
whole or in part, except for Licensee's backup or archive purposes. Licensee
agrees to maintain appropriate records of the number and location of all
copies of the Software and make such records available upon University's
request. Licensee further agrees to reproduce all copyright and other
proprietary notices on all copies of the Software in the same form and
manner that such copyright and other proprietary notices are originally
included on the Software.
LICENSE FEES AND PAYMENT.
License Fee. In consideration of the license rights granted in Article 2
above, Licensee shall pay the License Fees or other consideration for the
Software and Documentation as set forth on Exhibit "A" attached hereto. All
amounts payable hereunder by Licensee shall be payable in United States
funds without deductions for taxes, assessments, fees, or charges of any
kind. Checks shall be made payable to University and shall be forwarded to
the Office at University as follows:
Taxes and Other Charges. Licensee shall be responsible for paying all (i)
sales, use, excise, value-added, or other tax or governmental charges
imposed on the licensing or use of the Software or Documentation hereunder,
(ii) freight, insurance and installation charges, and (iii) import or export
duties or like charges.
PROTECTION OF SOFTWARE.
Proprietary Notices. Licensee agrees to respect and not to remove,
obliterate, or cancel from view any copyright, trademark, confidentiality or
other proprietary notice, mark, or legend appearing on any of the Software
or output generated by the Software, and to reproduce and include same on
each copy of the Software.
No Reverse Engineering. Licensee agrees not to modify, reverse engineer,
disassemble, or decompile the Software, or any portion thereof.
Ownership. Licensee further acknowledges that all copies of the Software in
any form provided by University or made by Licensee are the sole property of
University and/or its suppliers. Licensee shall not have any right, title,
or interest to any such Software or copies thereof except as provided in
this Agreement, and further shall secure and protect all Software and
Documentation consistent with maintenance of University's proprietary rights
Acknowledgement. Licensee hereby acknowledges and agrees that the Software
and Documentation constitute and contain valuable proprietary products and
trade secrets of University and/or its suppliers, embodying substantial
creative efforts and confidential information, ideas, and expressions.
Accordingly, Licensee agrees to treat (and take precautions to ensure that
its employees treat) the Software and Documentation as confidential in
accordance with the confidentiality requirements and conditions set forth
Maintenance of Confidential Information. Each party agrees to keep
confidential all confidential information disclosed to it by the other party
in accordance herewith, and to protect the confidentiality thereof in the
same manner it protects the confidentiality of similar information and data
of its own (at all times exercising at least a reasonable degree of care in
the protection of confidential information); provided, however, that neither
party shall have any such obligation with respect to use of disclosure to
others not parties to this Agreement of such confidential information as can
be established to: (a) have been known publicly; (b) have been known
generally in the industry before communication by the disclosing party to
the recipient; (c) have become know publicly, without fault on the part of
the recipient, subsequent to disclosure by the disclosing party; (d) have
been known otherwise by the recipient before communication by the disclosing
party; or (e) have been received by the recipient without any obligation of
confidentiality from a source (other than the disclosing party) lawfully
having possession of such information.
Injunctive Relief. Licensee acknowledges that the unauthorized use, transfer
or disclosure of the Software and Documentation or copies thereof will (i)
substantially diminish the value to University of the trade secrets and
other proprietary interests that are the subject of this Agreement; (ii)
render University's remedy at law for such unauthorized use, disclosure or
transfer inadequate; and (iii) cause irreparable injury in a short period of
time. If Licensee breaches any of its obligations with respect to the use or
confidentiality of the Software or Documentation, University shall be
entitled to equitable relief to protect its interests therein, including,
but not limited to, preliminary and permanent injunctive relief.
Survival. Licensee's obligations under this Article 8 will survive the
termination of this Agreement or of any license granted under this Agreement
for whatever reason.
WARRANTIES; SUPERIOR RIGHTS.
Ownership. Except for the rights, if any of the Government of the United
States, as set forth herein below, University represents its belief that it
is the owner of the entire right, title, and interest in and to Software,
and that it has the sole right to grant licenses thereunder, and that it has
not knowingly granted licenses thereunder to any other entity that would
restrict rights granted hereunder except as stated herein.
Government Rights. Licensee understands that the Software may have been
developed under a funding agreement with the Government of the United States
of America and, if so, that the Government may have certain rights relative
thereto. This Agreement is explicitly made subject to the Government's
rights under any such agreement and any applicable law or regulation, if
any. To the extent that there is a conflict between any such agreement,
applicable law or regulation and this Agreement, the terms of such
Government agreement, applicable law or regulation shall prevail.
Distribution of the Software to any government agency by Licensee shall not
be subject to the payments set forth above.
Limited Warranty. University represents and warrants to Licensee that the
Software, when properly installed by Licensee and used with the Designated
Equipment, will perform substantially as described in University's then
current Documentation for such Software for a period of ninety (90) days
from the date of shipment.
Limitations. Notwithstanding the warranty provisions set forth in Section
9.3 above, all of University's obligations with respect to such warranties
shall be contingent on Licensee's use of the Software in accordance with
this Agreement and in accordance with University's instructions as provided
by University in the Documentation, as such instructions may be amended,
supplemented, or modified by University from time to time. University shall
have no warranty obligations with respect to any failures of the Software
which are the result of accident, abuse, misapplication, extreme power surge
or extreme electromagnetic field.
Licensee's Sole Remedy. University's entire liability and Licensee's
exclusive remedy shall be, at University's option, either (a) return of the
price paid or (b) repair or replacement of the Software upon its return to
University; provided University receives written notice from Licensee during
the warranty period of a breach of warranty. Any replacement Software will
be warranted for the remainder of the original warranty period or thirty
(30) days, whichever is longer.
Disclaimer of Warranties. UNIVERSITY DOES NOT REPRESENT OR WARRANT THAT ALL
ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED. THE WARRANTIES
STATED IN SECTION 9.3 ABOVE ARE THE SOLE AND THE EXCLUSIVE WARRANTIES
OFFERED BY UNIVERSITY. THERE ARE NO OTHER WARRANTIES RESPECTING THE SOFTWARE
AND DOCUMENTATION OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE, EVEN IF UNIVERSITY HAS BEEN INFORMED OF
SUCH PURPOSE. NO AGENT OF UNIVERSITY IS AUTHORIZED TO ALTER OR EXCEED THE
WARRANTY OBLIGATIONS OF UNIVERSITY AS SET FORTH HEREIN.
Limitation of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT THE
CONSIDERATION WHICH UNIVERSITY IS CHARGING HEREUNDER DOES NOT INCLUDE ANY
CONSIDERATION FOR ASSUMPTION BY UNIVERSITY OF THE RISK OF LICENSEE'S
CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH
LICENSEE'S USE OF THE SOFTWARE AND DOCUMENTATION. ACCORDINGLY, LICENSEE
AGREES THAT UNIVERSITY SHALL NOT BE RESPONSIBLE TO LICENSEE FOR ANY LOSS-OF-PROFIT,
INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE
LICENSING OR USE OF THE SOFTWARE OR DOCUMENTATION. Any provision herein to
the contrary notwithstanding, the maximum liability of University to any
person, firm or corporation whatsoever arising out of or in the connection
with any license, use or other employment of any Software delivered to
Licensee hereunder, whether such liability arises from any claim based on
breach or repudiation of contract, warranty, tort or otherwise, shall in no
case exceed the actual price paid to University by Licensee for the Software
whose license, use, or other employment gives rise to the liability. The
essential purpose of this provision is to limit the potential liability of
University arising out of this Agreement. The parties acknowledge that the
limitations set forth in this Article 9 are integral to the amount of
consideration levied in connection with the license of the Software and
Documentation and any services rendered hereunder and that, were University
to assume any further liability other than as set forth herein, such
consideration would of necessity be set substantially higher.
University shall indemnify, hold harmless and defend Licensee against any
action brought against Licensee to the extent that such action is based on a
claim that the unmodified Software, when used in accordance with this
Agreement, infringes a United States copyright and University shall pay all
costs, settlements and damages finally awarded; provided, that Licensee
promptly notifies Institution in writing of any claim, gives University sole
control of the defense and settlement thereof and provides all reasonable
assistance in connection therewith. If any Software is finally adjudged to
so infringe, or in University's opinion is likely to become the subject of
such a claim, University shall, at its option, either: (i) procure for
Licensee the right to continue using the Software (ii) modify or replace the
Software to make it noninfringing, or (iii) refund the fee paid, less
reasonable depreciation, upon return of the Software. University shall have
no liability regarding any claim arising out of: (w) use of other than a
current, unaltered release of the Software unless the infringing portion is
also in the then current, unaltered release, (x) use of the Software in
combination with non-University software, data or equipment if the
infringement was caused by such use or combination, (y) any modification or
derivation of the Software not specifically authorized in writing by
University or (z) use of third party software. THE FOREGOING STATES THE
ENTIRE LIABILITY OF UNIVERSITY AND THE EXCLUSIVE REMEDY FOR LICENSEE
RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY COPYRIGHT OR OTHER
PROPRIETARY RIGHT BY THE SOFTWARE.
Except for the foregoing infringement claims, Licensee shall indemnify and
hold harmless System, University, their Regents, officers, agents and
employees from and against any claims, demands, or causes of action
whatsoever, including without limitation those arising on account of
Licensee's modification or enhancement of the Software or otherwise caused
by, or arising out of, or resulting from, the exercise or practice of the
license granted hereunder by Licensee, its sublicensees, if any, its
subsidiaries or their officers, employees, agents or representatives.
section must be included if the Software has medical applications.]
Licensee shall carry and maintain paid up policies for adequate products
liability insurance, with University identified as an additional insured,
and Licensee shall provide University with proof of all such insurance,
copies of all such policies, and any renewals thereof at University's
University, as a component of System, is an agency of the State of Texas and
is self-insured pursuant to The University of Texas System Professional
Medical Malpractice Self-Insurance Plan, under the authority of Section
59.01, Texas Education Code. University has and will maintain in force
during the term of this Agreement adequate insurance to cover its
DEFAULT AND TERMINATION.
Events of Default. This Agreement may be terminated by the nondefaulting
party if any of the following events of default occur: (1) if a party
materially fails to perform or comply with this Agreement or any provision
hereof; (2) if either party fails to strictly comply with the provisions of
Section 9 (Confidentiality) or makes an assignment in violation of Section
13 (Nonassignability); (3) if a party becomes insolvent or admits in writing
its inability to pay its debts as they mature, or makes an assignment for
the benefit of creditors; (4) if a petition under any foreign, state, or
United States bankruptcy act, receivership statute, or the like, as they now
exist, or as they may be amended, is filed by a party; or (5) if such a
petition is filed by any third party, or an application for a receiver is
made by anyone and such petition or application is not resolved favorably
within ninety (90) days.
Effective Date of Termination. Termination due to a material breach of
Articles 2 (Grant of Rights), 5 (Copies), 7 (Protection of Software), or 8 (Confidentiality)
shall be effective on notice. In all other cases, termination shall be
effective thirty (30) days after notice of termination to the defaulting
party if the defaults have not been cured within such thirty (30) day
Obligations on Termination. Within ten (10) days after termination of this
Agreement, Licensee shall cease and desist all use of the Software and
Documentation and shall return to University all full or partial copies of
the Software and Documentation in Licensee's possession or under its
notices, authorizations, and requests in connection with this Agreement shall
be deemed given (i) five days after being deposited in the U.S. mail, postage
prepaid, certified or registered, return receipt requested; or (ii) one day
after being sent by overnight courier, charges prepaid, with a confirming fax;
and addressed as first set forth above or to such other address as the party
to receive the notice or request so designates by written notice to the other.
Licensee shall not assign this Agreement or its rights hereunder without the
prior written consent of University.
GOVERNING LAW; JURISDICTION AND VENUE.
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of Texas.
The Texas state courts of County, Texas (or, if there is exclusive federal
jurisdiction, the United States District Court for the District of Texas)
shall have exclusive jurisdiction and venue over any dispute arising out of
this Agreement, and Licensee hereby consents to the jurisdiction of such
Software or Documentation to be furnished hereunder are to be used in the
performance of a government contract or subcontract, the software shall be
provided on a "restricted rights" basis only and Licensee shall place a legend,
in addition to applicable copyright notices, in the form provided under the
governmental regulations. University shall not be subject to any flowdown
provisions required by the governmental customer unless agreed to by
University in writing.
provision of this Agreement shall be held by a court of competent jurisdiction
to be illegal, invalid or unenforceable, the remaining provisions shall remain
in full force and effect.
Agreement and its exhibits contain the entire understanding and agreement
between the parties respecting the subject matter hereof. This Agreement may
not be supplemented, modified, amended, released or discharged except by an
instrument in writing signed by each party's duly authorized representative.
All captions and headings in this Agreement are for purposes of convenience
only and shall not affect the construction or interpretation of any of its
provisions. Any waiver by either party of any default or breach hereunder
shall not constitute a waiver of any provision of this Agreement or of any
subsequent default or breach of the same or a different kind.
WITNESS WHEREOF, the parties have caused their duly authorized representatives
to execute this Agreement as of the date first set forth above.
University of Texas