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BILINDEX DATABASES LICENSE AGREEMENT
THIS BILINDEX DATABASES LICENSE AGREEMENT ("Agreement") is made and entered into this ___ day of_____ , 200__ (the "Effective Date") by and between Floricanto Press and , private or public corporate users ("Licensee").
A. Floricanto Press is the owner of the Bilindex databases comprised of Bilindex-General, Bilindex-High-Technology, and Bilindex-Medicus and pertinent Documentation associated with them.
B. Floricanto Press grants to Licensee and Licensee desires to obtain from Floricanto Press a (non)exclusive and annual subscription license, subject to renewals, to use the designated Bilindex and Documentation solely in accordance with the terms and on the conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1.1 "Designated Equipment" shall mean the hardware products Windows or Mac personal computers or servers with which the Bilindex Databases is licensed for use.
1.2 "Documentation" shall mean all manuals, user documentation, and other related materials pertaining to the Bilindex Databases which are furnished to Licensee by Floricanto Press in connection with the Bilindex Databases.
1.3 "License Fee" shall mean the cost of the annual subscription, unless expressly defined otherwise.
1.4 "Bilindex Databases" shall mean the computer programs in machine readable PDF format and any subsequent error corrections, expansions, changes or updates supplied to the Licensee by Floricanto Press pursuant to this Agreement.
1.5 "Licensee" shall mean a juridical entity, or juridical person, be corporate or individual, who has been licensed by Floricanto Press to use the designated Bilindex databases..
2. GRANT OF RIGHTS.
The License granted for the content of the designated Bilindex Databases under this Agreement authorizes Licensee on a nonexclusive and temporary basis to use the designated Bilindex Databases. Licensee may copy or use any the subject headings, cross-references, scope notes or discreet text contained in the designated Bilindex database for the extension of his license, until it expires. Licensee shall not resell, dispose the data to others, unless expressly authorized to do so; any data sharing does not include the right of use or right to sell or resell the data for the third party receiving the data. The Licensee ergo cannot transmit rights over the data to others.
A. CD-ROM users: Licensees who received the designated Bilindex databases in CD-ROM may use the data in PC or MAC computer systems. The Bilindex Databases shall be used only on such primary systems or computer server of the licensee.
B. ONLINE USERS: Licensees who purchased an online subscription to BILINDEX ONLINE shall receive an ID and Password to access the designated Bilindex Databases at Floricanto Press established servers. The online licensee may have up to five simultaneous users accessing the designated Bilindex databases.
3.1 Bilindex Databases. Floricanto Press shall deliver to CD-ROM Licensee a CD-ROM copy of the designated Bilindex Databases licensed hereunder in PDF format, suitable for use, in electronic files only. Floricanto Press shall deliver to ONLINE Licensee an ID and PASSWORD to access the designated Bilindex Databases licensed hereunder in PDF format, suitable for use, in electronic files only.
3.2 Documentation. Floricanto Press includes Documentation at the beginning of each file.
4. MODIFICATIONS AND UPDATES.
4.1 Error Corrections, Modification, Expansions, and Updates. Floricanto Press maintains the ONLINE Bilindex databases, which includes error corrections, bug fixes, patches or other updates to the Bilindex Databases, licensed hereunder in PDF format to the extent available in accordance with Floricanto Press's release schedule for a period of one (1) year from the date in which the subscription is initiated.
4.2 Other Modifications. Licensee may, from time to time, request that Floricanto Press incorporate certain features, enhancements or modifications into the Bilindex Databases. Floricanto Press may, in its sole discretion, undertake to incorporate such changes and distribute the Bilindex Databases so modified to all or any of Floricanto Press's licensees.
4.3 Title to Modifications. All such error corrections, bug fixes, patches, updates or other modifications shall be the sole property of Floricanto Press.
5.1 Printed Matter. Except as specifically set forth herein, no Bilindex Databases or Documentation which is provided by Floricanto Press 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 Floricanto Press's prior written agreement. Additional copies of printed materials may be obtained from Floricanto Press at the charges then in effect.
5.2 Machine Readable Matter. Except as specifically set forth herein, any Bilindex Databases 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 Bilindex Databases and make such records available upon Floricanto Press's request. Licensee further agrees to reproduce all copyright and other proprietary notices on all copies of the Bilindex Databases in the same form and manner that such copyright and other proprietary notices are originally included on the Bilindex Databases.
6. LICENSE FEES AND PAYMENT.
6.1 License Fee. In consideration of the license rights granted in Article 2 above, Licensee shall pay the License Fees or other consideration for the Bilindex Databases 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 Floricanto Press and shall be forwarded to the Office at Floricanto Press as follows:
650 Castro Street, Suite 120—331
Mountain View, California 94041
6.2 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 Bilindex Databases or Documentation hereunder, (ii) freight, insurance and installation charges, and (iii) import or export duties or like charges.
7. PROTECTION OF BILINDEX DATABASES.
7.1 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 Bilindex Databases or output generated by the Bilindex Databases, and to reproduce and include same on each copy of the Bilindex Databases.
7.2 No Reverse Engineering. Licensee agrees not to modify, reverse engineer, disassemble, or decompile the Bilindex Databases, or any portion thereof.
7.3 Ownership. Licensee further acknowledges that all copies of the Bilindex Databases in any form provided by Floricanto Press or made by Licensee are the sole property of Floricanto Press and/or its suppliers. Licensee shall not have any right, title, or interest to any such Bilindex Databases or copies thereof except as provided in this Agreement, and further shall secure and protect all Bilindex Databases and Documentation consistent with maintenance of Floricanto Press's proprietary rights therein.
8.1 Acknowledgement. Licensee hereby acknowledges and agrees that the Bilindex Databases and Documentation constitute and contain valuable proprietary products and trade secrets of Floricanto Press 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 Bilindex Databases and Documentation as confidential in accordance with the confidentiality requirements and conditions set forth below.
8.2 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.
8.3 Injunctive Relief. Licensee acknowledges that the unauthorized use, transfer or disclosure of the Bilindex Databases and Documentation or copies thereof will (i) substantially diminish the value to Floricanto Press of the trade secrets and other proprietary interests that are the subject of this Agreement; (ii) render Floricanto Press'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 Bilindex Databases or Documentation, Floricanto Press shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
8.4 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.
9. WARRANTIES; SUPERIOR RIGHTS.
9.1 Ownership. Except for the rights, if any of the Government of the United States, as set forth herein below, Floricanto Press represents its belief that it is the owner of the entire right, title, and interest in and to Bilindex Databases, 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.
9.2 Government Rights. Licensee understands that the Bilindex Databases 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 Bilindex Databases to any government agency by Licensee shall not be subject to the payments set forth above.
9.3 Limited Warranty. Floricanto Press represents and warrants to Licensee that the Bilindex Databases, when properly installed by Licensee and used with the Designated Equipment, will perform substantially as described in Floricanto Press's then current Documentation for such Bilindex Databases for the period of the said subscription or for one year from the date of shipment.
9.4 Limitations. Notwithstanding the warranty provisions set forth in Section 9.3 above, all of Floricanto Press's obligations with respect to such warranties shall be contingent on Licensee's use of the Bilindex Databases in accordance with this Agreement and in accordance with Floricanto Press's instructions as provided by Floricanto Press in the Documentation, as such instructions may be amended, supplemented, or modified by Floricanto Press from time to time. Floricanto Press shall have no warranty obligations with respect to any failures of the Bilindex Databases which are the result of accident, abuse, misapplication, extreme power surge or extreme electromagnetic field, low connectivity, or connectivity issues on the side of the user.
9.5 Licensee's Sole Remedy. Floricanto Press's entire liability and Licensee's exclusive remedy shall be, at Floricanto Press's option, either (a) return of the price paid or (b) repair or replacement of the Bilindex Databases upon the return of the CD-ROM to Floricanto Press; provided Floricanto Press receives written notice from Licensee during the warranty period of a breach of warranty. Any replacement Bilindex Databases will be warranted for the remainder of the original warranty period of one year.
9.6 Disclaimer of Warranties. FLORICANTO PRESS DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS IN THE BILINDEX DATABASES AND DOCUMENTATION WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 9.3 ABOVE ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED BY FLORICANTO PRESS. THERE ARE NO OTHER WARRANTIES RESPECTING THE BILINDEX DATABASES 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 FLORICANTO PRESS HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF FLORICANTO PRESS IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF FLORICANTO PRESS AS SET FORTH HEREIN.
9.7 Limitation of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH FLORICANTO PRESS IS CHARGING HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY FLORICANTO PRESS OF THE RISK OF LICENSEE'S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH LICENSEE'S USE OF THE BILINDEX DATABASES AND DOCUMENTATION. ACCORDINGLY, LICENSEE AGREES THAT FLORICANTO PRESS 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 BILINDEX DATABASES OR DOCUMENTATION. Any provision herein to the contrary notwithstanding, the maximum liability of Floricanto Press to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of any Bilindex Databases 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 Floricanto Press by Licensee for the Bilindex Databases whose license, use, or other employment gives rise to the liability. The essential purpose of this provision is to limit the potential liability of Floricanto Press 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 Bilindex Databases and Documentation and any services rendered hereunder and that, were Floricanto Press to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.
10.1 Floricanto Press 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 Bilindex Databases, when used in accordance with this Agreement, infringes a United States copyright and Floricanto Press shall pay all costs, settlements and damages finally awarded; provided, that Licensee promptly notifies Institution in writing of any claim, gives Floricanto Press sole control of the defense and settlement thereof and provides all reasonable assistance in connection therewith. If any Bilindex Databases is finally adjudged to so infringe, or in Floricanto Press's opinion is likely to become the subject of such a claim, Floricanto Press shall, at its option, either: (i) procure for Licensee the right to continue using the Bilindex Databases (ii) modify or replace the Bilindex Databases to make it noninfringing, or (iii) refund the fee paid, less reasonable depreciation, upon return of the Bilindex Databases. Floricanto Press shall have no liability regarding any claim arising out of: (w) use of other than a current, unaltered release of the Bilindex Databases unless the infringing portion is also in the then current, unaltered release, (x) use of the Bilindex Databases in combination with non-Floricanto Press Bilindex Databases, data or equipment if the infringement was caused by such use or combination, (y) any modification or derivation of the Bilindex Databases not specifically authorized in writing by Floricanto Press or (z) use of third party Bilindex Databases. THE FOREGOING STATES THE ENTIRE LIABILITY OF FLORICANTO PRESS AND THE EXCLUSIVE REMEDY FOR LICENSEE RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY COPYRIGHT OR OTHER PROPRIETARY RIGHT BY THE BILINDEX DATABASES.
10.2 Except for the foregoing infringement claims, Licensee shall indemnify and hold harmless System, Floricanto Press, 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 Bilindex Databases 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.
11. DEFAULT AND TERMINATION.
11.1 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.
11.2 Effective Date of Termination. Termination due to a material breach of Articles 2 (Grant of Rights), 5 (Copies), 7 (Protection of Bilindex Databases), 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 period.
11.3 Obligations on Termination. Within ten (10) days after termination of this Agreement, Licensee shall cease and desist all use of the Bilindex Databases and Documentation and shall return to Floricanto Press all full or partial copies of the Bilindex Databases and Documentation in Licensee's possession or under its control.
12. NOTICES. All 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.
13. NONASSIGNABILITY. Licensee shall not assign this Agreement or its rights hereunder without the prior written consent of Floricanto Press.
14. GOVERNING LAW; JURISDICTION AND VENUE. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California. The California state courts of County of Santa Clara, California (or, if there is exclusive federal jurisdiction, the United States District Court for the District of California) shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement, and Licensee hereby consents to the jurisdiction of such courts.
16. GOVERNMENT CONTRACTS. If the Bilindex Databases or Documentation to be furnished hereunder are to be used in the performance of a government contract or subcontract, the Bilindex Databases 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. Floricanto Press shall not be subject to any flowdown provisions required by the governmental customer unless agreed to by Floricanto Press in writing.
17. SEVERABILITY. If any 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.
18. MISCELLANEOUS. This 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.
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Agreement as of the date first set forth above.
The Floricanto Press of Mountain View, California