BLUEWHALE SDK LICENSE AGREEMENT
(Version 2.0 (Click-Through) 4-20-2018)
THIS BLUEWHALE SDK LICENSE AGREEMENT AND EACH OF THE EXHIBITS REFERENCED HEREIN (together, the “AGREEMENT”) STATE THE CONTRACTUAL TERMS AND CONDITIONS WHICH SHALL GOVERN YOUR COMPANY’S LICENSING OF THE BLUEWHALE SDK LICENSED TECHNOLOGY. PLEASE REVIEW THIS AGREEMENT CAREFULLY BEFORE ACCEPTING IT ON BEHALF OF YOUR COMPANY.
The Bluewhale SDK Licensed Technology is provided by Intertrust Cloud Services Corporation (“ICSC”). Use of the Licensed Technology is expressly conditioned on acceptance of the following terms. No company will be permitted to use the Licensed Technology, unless an authorized representative has accepted this Agreement on its behalf. If you are not authorized to accept this Agreement on behalf of your company, please either gain that authorization before proceeding further with this Agreement, or have a person who is so authorized review this Agreement and, if acceptable, accept it on behalf of your company.
This Agreement shall become effective on the date this Agreement is accepted online (the “Effective Date”) and shall continue in effect for the Term set forth in the General Terms and Conditions. ICSC and Company are also hereinafter referred to collectively as the “Parties” and individually as a “Party”.
GENERAL TERMS AND CONDITIONS
- 1. LICENSE GRANTS AND LIMITATIONS; OWNERSHIP
- 1.1 Development License. Subject to Company’s compliance with the terms and conditions of this Agreement, Intertrust grants to Company a non-exclusive, non-transferable (except as provided in Section 14.7), non-sublicensable (except as otherwise provided herein), non-assignable (except as provided in Section 14.7), revocable in the event of breach, world-wide license (a) under Intertrust’s copyrights in the Licensed Technology, to reproduce and modify the Licensed Technology solely in order for Company to develop Developed Technology; and (b) under Intertrust’s trade secret rights in the Licensed Technology, to reference the Licensed Technology solely in order for Company to develop Developed Technology.
1.2 Distribution License. Subject to Company’s compliance with the terms and conditions of this Agreement, Intertrust grants to Company a non-exclusive, personal, non-transferable (except as provided in Section 14.7), non-sublicensable (except as otherwise provided herein), revocable in the event of breach, non-assignable (except as provided in Section 14.7), world-wide license under Intertrust’s copyrights and trade secret rights in the Licensed Technology:
- (a) to reproduce, install and test Developed Technology for the purpose of providing Company Services;
- (b) to provide Developed Technology in source code or object code form to an Authorized Contractor to perform, on behalf of Company, the actions described in Section 1.2(a), subject to the requirements of Section 2.4; and
- (c) to Provide Company Services to Customers.
1.3 License Limitations and Requirements.
- (a) The licenses granted in Sections 1.1 and 1.2 are the only licenses granted to Company under this Agreement, extend only to Licensed Technology and Developed Technology that is used to provide Company Services, and do not grant Company i) the right to sublicense any Licensed Technology to any other party (except to the extent that it is an element of Developed Technology that is provided to an Authorized Contractor in accordance with Section 1.2(b) or to the extent that it is an element of Developed Technology that is used to provide Company Services pursuant to the license grant set forth in Section 1.2(c)), or ii) the right to license or distribute any service, software, or technology consisting of or containing Developed Technology to anyone other than an Affiliate in accordance with Section 4 or an Authorized Contractor in accordance with Section 1.2(b), except to the extent that it is an element of a Company Service.
- (b) The licenses granted in Sections 1.1 and 1.2 do not include the right to, and Company shall not, (i) create derivative works of the Licensed Technology (including Developed Technology) or otherwise distribute the Licensed Technology in any manner that would cause the Licensed Technology, in whole or in part, to become subject to any of the terms of an Excluded License (as defined below); or (ii) distribute the Licensed Technology (or derivative works thereof, including Developed Technology) in any manner that would cause any item of Licensed Technology to become subject to any of the terms of an Excluded License. An “Excluded License” is any license that requires as a condition of its use, modification and/or distribution of software subject to such license, that such software or other software combined and/or distributed with such software be (x) disclosed or distributed in source code form; (y) licensed for the purpose of making derivative works; or (z) redistributable at no charge or that its licensees grant third parties licenses or immunities with respect to any intellectual property.
- (c) The licenses granted in Sections 1.1 and 1.2 do not include the right to, and Company shall not, develop or Provide any service, software, or technology that is designed, manufactured, reproduced, or Provided through or by Company to a third party (or to customers of, or as directed by, that third party) in a manner that circumvents the terms of Section 5.1 or any obligation to make payments to Intertrust that otherwise would apply to the Provision of any such service, software, or technology. In the interest of clarity, this Agreement would be violated by any arrangement under which Company permits a third party or a Company Affiliate to take any action with respect to a service, software, or technology that would permit Company to avoid paying any amounts that would otherwise be due under this Agreement.
- (d) The licenses granted in Sections 1.1 and 1.2 do not provide Company any right to receive subsequent revisions and improvements to the Licensed Technology provided hereunder. Company’s right to receive subsequent revisions and improvements shall be limited to the undertakings set forth in Section 1.6 and Exhibit D.
- (e) Neither Company nor any Affiliate of Company shall (i) reverse engineer any element of the Licensed Technology or emulate the functionality of the Licensed Technology for any purpose not expressly permitted by this Agreement, (ii) rent, lease, sublicense (except as expressly permitted herein), assign (except as expressly permitted herein), loan or otherwise transfer the Licensed Technology or any of Company’s rights and obligations under this Agreement, or (iii) use the Licensed Technology to operate as an application service provider, software-as-a-service provider or a service bureau with respect to the Licensed Technology.
- (a) Except as expressly licensed to Company under this Agreement, as between Intertrust and Company, Intertrust is the sole and exclusive owner of, and reserves all rights, title, and interest in and to the Licensed Technology, including but not limited to, (i) all enhancements, modifications, and/or derivative works of Licensed Technology created by (and/or by any third party for), or owned by, Intertrust and all derivative works of Licensed Technology created by Company other than Developed Technology, except that portion of such Developed Technology that consists of Licensed Technology or any item falling within the following clause (ii) or clause (iii); (ii) all ports or mere reimplementations of Licensed Technology; and (iii) all Intellectual Property Rights created or embodied in the foregoing or any works (whether tangible or intangible) created, or independently developed, by (and/or by any third party for) Intertrust in connection with its performance of this Agreement (all of the rights, title and interest identified in this sentence, collectively, “Intertrust Property“). No provision contained in this Agreement shall be construed to transfer to Company or any other entity or person any title or ownership interest in any Intertrust Property.
- (b) Subject to Intertrust’s ownership of the underlying Intertrust Property, as between Company and Intertrust, Company reserves all other right, title, and interest in and to the Developed Technology and Company Services.
- 1.5 No Implied Licenses. Under no circumstances shall any provision of this Agreement be construed as granting to Company, by implication, estoppel or otherwise, (i) a license to anything other than the Licensed Technology; (ii) a license under any Intertrust Necessary Claims or patents to engage in any activity other than those permitted by Sections 1.1 and 1.2; or (iii) any additional license rights with respect to the Licensed Technology other than the licenses expressly granted in this Agreement.
- 1.6 Limited Maintenance and Support Service. Unless Company elects otherwise pursuant to the following paragraph, Intertrust shall provide Company the maintenance and support service described in Exhibit D (“Limited Maintenance and Support Service”) for the fee indicated in the applicable Purchase Agreement, and to the extent that Company submits written requests to Intertrust for assistance resolving problems with the Licensed Technology (“Tickets”), Intertrust shall provide Company the additional support described in Exhibit E (“Ticket Service”) on a per Ticket basis, for the fee set forth in the applicable Purchase Agreement (such fee, “Ticket Fee”).
- 2. COMPANY CONDITIONS AND OBLIGATIONS
- 2.1 Implementations. Company may use the Licensed Technology (and any Confidential Information contained therein) solely to develop Developed Technology that complies with the Marlin Specifications. Company shall not use the Licensed Technology (or any Confidential Information contained there) for any other purpose, including without limitation, to develop new or different digital rights management technology or other content protection technology.
- 2.2 Proprietary Rights Notices. Company shall display a proprietary rights notice and disclaimer in all user documentation of each Company Service, in the form of the notice set forth in the .txt files of the Licensed Technology that Company utilizes in connection with each such item of Developed Technology, as well as the copyright notice: “Portions Copyright © 2004 – 2016, Intertrust Technologies Corporation and its licensors. All rights reserved.” Company shall not remove or obscure, and shall retain in the Developed Technology, any copyright, trademark, or patent notice that appears in or on the Licensed Technology.
- 2.3 Trademark Usage. All Company Services shall be branded and marked exclusively under trademarks of Company or its licensee, without reference to Intertrust or any of its trademarks, except as required by Section 2.2. Company shall not refer to any Developed Technology or Company Service in any manner that may create the appearance that Company is the owner or developer of the Licensed Technology, or that Intertrust is the source of any Developed Technology, any Company Service or any element of any Company Service.
- 2.4 Authorized Contractors. If Company or any Affiliate engages third parties who are not themselves licensees of the Licensed Technology (“Authorized Contractors”) to develop, reproduce, install, or test Developed Technology for use with Company Services, Company shall:
- (a) notify Intertrust in writing of the identity of the Authorized Contractor at least thirty (30) days prior to engaging the Authorized Contractor;
- (b) engage such Authorized Contractor under a written agreement that obligates the Authorized Contractor to obligations concerning the Licensed Technology and the Developed Technology that are as or more stringent than those undertaken by Company under this Agreement;
- (c) use commercially reasonable efforts to correct any breach of this Agreement caused by an Authorized Contractor immediately upon discovery of such breach. Such actions shall include, without limitation, requiring the Authorized Contractor to suspend its activity related to the Licensed Technology and the Developed Technology; and
- (d) be liable for any acts or omissions by the Authorized Contractor which, if performed or not performed by Company, would be a breach of this Agreement.
- 2.5 No Intertrust Warranties. Company shall not make any representation or warranty to any third parties (including Affiliates) on behalf of Intertrust or any Intertrust Affiliate.
- 3. FEES & ROYALTIES
- The fees and royalties which Company shall pay ICSC in consideration of the rights granted and the services provided to Company under the Agreement, when such payment obligations may be invoiced and must be paid, late payment terms, and the parties’ responsibilities with respect to taxes shall be as specified in the applicable Purchase Agreement.
- 4. AFFILIATES
- 4.1 The rights and obligations under this Agreement extend to each of Company’s Affiliates just as if each Affiliate had executed this Agreement itself. Company shall cause each of its Affiliates to comply with the terms and conditions of this Agreement, and Company shall be jointly and severally liable with each of its Affiliates for breach of this Agreement by any Company Affiliate. Company may distribute copies of the Licensed Technology and Developed Technology that contain, practice or otherwise utilize Developed Technology, to any of its Affiliates so long as
- (a) prior to the distribution of any Licensed Technology or Developed Technology not previously distributed to an Affiliate, the Affiliate executes and sends to Intertrust an Affiliate Joinder Agreement, referencing the relevant Developed Technology and Company Services, in the form set forth in Exhibit B;
- (b) Company uses a secure means to deliver the Licensed Technology and/or Developed Technology to the Affiliate; and
- (c) Company places the following statement in a prominent position in at least one of the following places: (i) on the physical housing of each item containing Developed Technology provided to the Affiliate, (ii) in the header files of any Licensed Technology or Developed Technology code provided to the Affiliate, or (iii) in the accompanying documentation provided to the Affiliate: “This item is covered by certain intellectual property rights of Intertrust and may only be used and be distributed in accordance with the Affiliate Joinder Agreement entered into by [name of Affiliate]”.
- 4.2 Company will notify Intertrust when an entity that has previously been an Affiliate ceases to be an Affiliate within 10 days of the events that cause the entity to cease to be an Affiliate. Upon an entity ceasing to be an Affiliate, the entity’s rights under Sections 1.1 and 1.2 of this Agreement shall immediately terminate, and within 10 days of that event, the entity shall (a) cease all use of, and render unusable by any individual, all copies of each item of Licensed Technology and Developed Technology in the possession of the Affiliate or its Authorized Contractors, all Company Services with respect to which Company has not paid Intertrust the applicable Royalty, and anything else in the possession of the Affiliate or its Authorized Contractors that embodies Intertrust’s Confidential Information (and certify such destruction in a writing reasonably acceptable to Intertrust), and (b) cease the production and Provision of each Company Service.
- 4.3 If Intertrust terminates this Agreement following a breach by Company or any Company Affiliate, this Agreement shall terminate with respect to Company and all of its Affiliates. All remedies available to Intertrust, including the ability to obtain injunctive relief, shall be available to Intertrust with respect to Company Affiliates.
- 5. COMPANY PATENTS; DEFENSIVE SUSPENSION
- 5.1 License to Company Patents. As partial, material consideration for the rights granted to Company under this Agreement:
- (a) Company, on behalf of itself and its Affiliates, agrees to grant to Intertrust, its Affiliates, and all other licensees of the Licensed Technology and any subsequent version of those items (collectively “Section 5.1 Technology”) hereunder on fair and reasonable terms and conditions, a nonexclusive, nontransferable, non-sublicensable, non-assignable, personal, worldwide license under Company’s and its Affiliates’ Necessary Claims to make, have made, use, import, offer to sell, sell and otherwise distribute directly or indirectly Section 5.1 Technology, and any products or services made using Section 5.1 Technology.
- (b) Company agrees that any patent or patent application having Company’s or its Affiliates’ Necessary Claims that Company transfers to a third party or an Affiliate shall remain subject to this Agreement, and that such transfer shall not affect the licenses granted herein. Any purported assignment or transfer of rights in derogation of the foregoing requirement shall constitute a material breach of this Agreement which may result in the Agreement’s termination by Intertrust pursuant to Section 12.2.
- 5.2 Defensive Suspension. In the event Company brings an action for infringement of Necessary Claims, copyrights, trade secrets or any other intellectual property of Company with respect to any portion of the Marlin Specifications or any Intertrust Property, Intertrust may suspend any or all of the licenses granted to Company under this Agreement.
- 6. CONFIDENTIALITY AND FEEDBACK
- 6.1 Protection of Confidential Information. Each party agrees that all code, inventions, algorithms, know-how and ideas it obtains from the disclosing party and all other business, technical and financial information it obtains from the disclosing party are the confidential property of the disclosing party (“Confidential Information”), provided that the receiving party is advised or receives notification that such information is confidential, and all software, documentation or technical information provided by Intertrust shall be deemed Confidential Information of Intertrust without any marking or further designation. Except as expressly and unambiguously allowed herein to exercise the rights hereunder, the receiving party will hold in confidence and not use or disclose any Confidential Information and shall only disclose to such of its agents having a need to know Confidential Information in order to exercise the receiving Party’s rights hereunder and provided such agents are bound by a written confidentiality agreement with terms at least as stringent as set forth herein. Company shall not disclose to any third party any Confidential Information which is directly related to Licensed Technology, Developed Technology or Intertrust’s business activities, without first acquiring written approval from Intertrust. The terms and conditions of this Agreement shall be considered Confidential Information. The receiving Party’s nondisclosure obligation shall not apply to information which: (i) is or has become public knowledge through no fault of the receiving party; (ii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; (iii) is independently developed by employees of the receiving party without use of or reference to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order, and after providing notice to the disclosing party to allow such party to contest such disclosure).
- 6.2 Use On-Site. Except as otherwise expressly authorized pursuant to Section 2.4, the Licensed Technology may be used only at Company’s premises and only by Company’s employees and independent contractors. In each case the Licensed Technology may only be used by independent contractors and employees who (y) have a need to know for the purposes of creating Developed Technology for Company and are under a suitable written non-disclosure agreement that does not permit disclosure or use except as permitted under this Agreement; and (z) are engaged on a basis such that, as between Company and such persons or entities performing the services, Company is the sole and exclusive owner of all Intellectual Property Rights, confidential information and materials arising from any work created by such contractors and employees. Company is liable for any breach of this Agreement by any independent contractor and/or employee of Company or by any independent contractor and/or employee of its Affiliates.
- 6.3 Feedback.
- Company has no obligation to give Intertrust any suggestions, comments or other feedback relating to the Licensed Technology (“Feedback”). Intertrust may use and include any Feedback that Company voluntarily provides to improve the Licensed Technology or other related Intertrust technologies. Accordingly, if Company provides Feedback, Company agrees Intertrust and its licensees may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Licensed Technology or other related technologies (including their own Developed Technology). Company further agrees not to provide any Feedback that (i) Company knows is subject to a patent, copyright or other intellectual property claim or right of any third party; or (ii) is subject to license terms which seek to require any products incorporating or derived from such Feedback, or other Intertrust intellectual property, to be licensed to or otherwise shared with any third party.
- 6.4 Judicial Order. Either party may disclose Confidential Information in accordance with a judicial or other governmental order, provided that such party either (i) gives the other party reasonable notice prior to such disclosure to allow it a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the foregoing, Company shall not disclose any computer source code that contains Confidential Information in accordance with a judicial or other governmental order unless it complies with the requirement set forth in clause (i) of the previous sentence.
- 7. WEBSITE/PUBLICITY
- Company consents to Intertrust listing Company at www.intertrust.com/ as a licensee of the Licensed Technology and Company Services as containing Developed Technology. The parties shall issue a mutually acceptable joint press release announcing that Company has become a licensee of the Licensed Technology within thirty (30) days of the Effective Date. Company grants Intertrust a royalty-free, non-assignable (except in accordance with Section 14.7 below) right to display Company’s logo, trademarks and other branding indicia during the Term at the locations on Intertrust’s website and in its promotional literature where Intertrust lists its customers, in a manner that is no more prominent than the logos, trademarks and other branding indicia of Intertrust’s other customers that are displayed at the same location.
- 8. NON-EXCLUSIVE; INDEPENDENT DEVELOPMENT
- Nothing in this Agreement other than Sections 1.4 and 2.1 restricts either party’s ability to acquire, license, develop, manufacture or distribute for itself, or have others acquire, license, develop, manufacture or distribute, similar technology performing the same or similar functions as the technology contemplated by this Agreement to be developed, or to market and distribute such similar technology in addition to, or in lieu of, the technology contemplated by this Agreement.
- 9. WARRANTIES
- 9.1 Warranties.
- (a) Intertrust and Company each represents and warrants that it has the full power and all of the rights necessary to enter into perform this Agreement.
- (b) Company further represents and warrants that (i) it is entering into this Agreement for the bona fide purpose of commercially developing Developed Technology for use in and with Company Services; (ii) it has legal authority to bind itself and its Affiliates to all of the terms and conditions of this Agreement to the same extent as if each Affiliate had executed this Agreement individually on its own behalf; and (iii) neither it, nor any of its Affiliates, have assigned any patent or patent application having one or more claims which otherwise would fall under the definition of a Necessary Claim in anticipation of entering into this Agreement.
- 9.2 DISCLAIMER OF FURTHER WARRANTIES; ACKNOWLEDGMENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 9.1, EACH PARTY AND ITS SUPPLIERS AND AFFILIATES PROVIDE THE LICENSED TECHNOLOGY, DEVELOPED TECHNOLOGY, COMPANY SERVICES, SERVICES, SECURITY DOCUMENTATION, AND CONFIDENTIAL INFORMATION (ALL OF THE FOREGOING COLLECTIVELY THE “MATERIALS”) “AS IS” AND WITH ALL FAULTS. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 9.1, EACH PARTY AND ITS SUPPLIERS AND AFFILIATES HEREBY DISCLAIM WITH RESPECT TO THE MATERIALS AND ALL SERVICES PROVIDED HEREUNDER ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY, RESULTS, WORKMANLIKE EFFORT, SATISFACTION OF COMPANY REQUIREMENTS AND NONINFRINGEMENT. NOR DOES INTERTRUST WARRANT THAT ANY LICENSED TECHNOLOGY WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, OR THAT USE OF THE LICENSED TECHNOLOGY OR ANY DEVELOPED TECHNOLOGY SHALL BRING ANY COMPANY SERVICE INTO COMPLIANCE WITH ANY REQUIREMENT OF THE MARLIN SERVICE PROVIDER AGREEMENT. COMPANY ACKNOWLEDGES THAT THIS AGREEMENT DOES NOT GRANT COMPANY ALL OF THE THIRD PARTY RIGHTS THAT COMPANY MAY NEED IN ORDER TO MAKE ITS INTENDED USES OF THE LICENSED TECHNOLOGY AND ANY DEVELOPED TECHNOLOGY, AND THAT COMPANY ALONE (AND NOT INTERTRUST) SHALL BE RESPONSIBLE FOR SECURING ANY ADDITIONAL RIGHTS NEEDED FOR SUCH PURPOSE. COMPANY FURTHER ACKNOWLEDGES THAT INTERTRUST IS NOT PROVIDING REQUISITE TAMPER-RESISTANT SOLUTIONS. NO VERBAL OR WRITTEN STATEMENT OF ANY INTERTRUST EMPLOYEE, AGENT OR REPRESENTATIVE SHALL INCREASE IN ANY RESPECT THE SCOPE OF THE WARRANTY SET FORTH IN SECTION 9.1.
- 10. INDEMNIFICATION BY INTERTRUST
- 10.1 Scope. Company shall promptly notify Intertrust in writing of any third party claim made against Company or its Affiliates that unmodified Licensed Technology used in accordance with its documentation infringes any third party copyright that is enforceable in the United States, where such Licensed Technology alone, without combination or modification, constitutes infringement (including direct or contributory infringement). At Company’s written request, Intertrust agrees to defend Company and its Affiliates at Intertrust’s expense in a lawsuit, judicial action, or similar proceeding, and pay the amount of any adverse final judgment (or settlement to which Intertrust consents) from such lawsuit, judicial action, or similar proceeding, for any third party claim(s) that the Licensed Technology used in accordance with its documentation infringes any such copyright. Such lawsuits, judicial actions, or similar proceedings are referred to as “Intertrust Claims.”
- 10.2 Conditions. With regard to any Intertrust Claim, Intertrust’s obligations are subject to the following conditions:
- (a) Company must promptly notify Intertrust in writing of the Intertrust Claim;
- (b) Company and the relevant Affiliate(s) must allow Intertrust to have sole control over defense and/or settlement of the Intertrust Claim, so long as Intertrust does not enter into a settlement that requires Company to make a payment to a third party or assume another obligation (other than those relating to the use or non-use of the Licensed Technology) without Company’s consent, which shall not be unreasonably withheld; and
- (c) Company and the relevant Affiliate(s) must provide Intertrust with reasonable assistance in the defense of the Intertrust Claim.
- 10.3 Other Remedies. In addition to the obligations set forth in Section 10.1 above, if Intertrust receives information indicating that the rights of Company or a Company Affiliate have been or are likely to be enjoined on the basis of an existing or potential Intertrust Claim, Intertrust may, at its expense (but without obligation to do so), undertake further actions such as:
- (a) procuring for Company such copyright license(s) (other than those which Company has the right to obtain itself pursuant to the Marlin Service Provider Agreement) as may be necessary to resolve the Intertrust Claim, or
- (b) replacing or modifying the Licensed Technology to make it non-infringing (in which case Company and the relevant Affiliate(s) shall immediately cease distribution of the allegedly infringing Licensed Technology).
- 10.4 Sole and Exclusive Remedies. This Section 10 states Company’s sole and exclusive remedy and Intertrust’s entire liability for any claim of infringement arising out of or related to Licensed Technology or any service provided under this Agreement.
- 11. INDEMNIFICATION BY COMPANY
- 11.1 Scope. At Intertrust’s written request, Company agrees to defend Intertrust and its Affiliates at Company’s expense in a lawsuit, judicial action, or similar proceeding, and pay the amount of any adverse final judgment (or settlement to which Company consents) from such lawsuit, judicial action, or similar proceeding, for any third party claim(s) based upon (i) the infringement by a Company Service of an Intellectual Property Right of the third party (except where the alleged infringement is a copyright infringement with respect to which Intertrust is obligated to indemnify Company pursuant to Section 10.1) (ii) any breach of this Agreement by Company or (iii) to the extent not encompassed by (i) or (ii), the marketing and sale of any Company Service. Such lawsuits or other judicial actions are referred to as “Company Claims.”
- 11.2 Conditions. With regard to any Company Claim, Company’s obligations are subject to the following conditions:
- (a) Intertrust must promptly notify Company in writing of the Company Claim;
- (b) Intertrust must allow Company to have sole control over defense and/or settlement of the Company Claim, so long as Company does not enter into a settlement that requires Intertrust to make a payment to a third party or assume another obligation without Intertrust’s consent, which shall not be unreasonably withheld. Notwithstanding the foregoing (or any other section of this Agreement), it is understood and acknowledged that Intertrust shall in all circumstances have the right to control the defense and/or settlement of any claim relating to any Intertrust Property and/or Intertrust Intellectual Property Rights; and
- (c) Intertrust must provide Company with reasonable assistance in the defense of the Company Claim.
- 11.3 Sole and Exclusive Remedies. This Section 11 states Intertrust’s sole and exclusive remedy and Company’s entire liability for any claim of infringement arising out of or related to Licensed Technology or any service provided under this Agreement.
- 12. Term; Changes and Termination.
- 12.1 Term. The initial term of this Agreement shall be one (1) year from the Effective Date, and shall automatically renew for additional one (1) year terms unless either Party provides the other Party written notice of non-renewal at least thirty (30) days prior to the conclusion of the then current term (the entire period of all such terms, “Term”). The Term shall continue until the Agreement is terminated by either Party in accordance with the provisions of the Agreement.
- 12.2 Change. ICSC may, in its sole discretion, change the terms of this Agreement (including all fees hereunder) upon thirty (30) days written notice to Company. Such notice may be provided through Company’s account on www.expressplay.com or www.expressplay.cn (as applicable), via email, or through posting of the revised Agreement on www.expressplay.com or www.expressplay.cn (as applicable). Accordingly, Company is encouraged to visit this webpage periodically to confirm its satisfaction with the terms of this Agreement. The date on which the current version of this Agreement was issued shall be posted in the parenthetical immediately beneath the title of this Agreement set forth on its first page. Company’s continued subscription to this Service and use of the Licensed Technology and Support Plan shall signify Company’s consent to the current terms of this Agreement. Should Company determine that the current terms of this Agreement are unacceptable to Company, its sole and exclusive remedy shall be to immediately cease utilizing the Licensed Technology and to terminate this Agreement before the effective date of such change, without penalty or liability.
- In addition to changes made by ICSC as permitted herein, the Parties may mutually agree on certain changes as set forth in an order form, purchase agreement, or amendment provided by ICSC and signed by both Parties. Each party may change its address for notices by providing written notice hereunder. Such notice will be deemed given for purposes of this Agreement on the day that such change is updated at https://admin.expressplay.com.
- 12.3 Termination by Either Party for Cause. Either Party may terminate this Agreement immediately upon written notice at any time if:
- 12.3.1 The other Party is in material breach of any provision of this Agreement and fails to cure that material breach within thirty (30) days after written notice thereof; or
- 12.3.2 A Party becomes insolvent, enters bankruptcy, reorganization, composition or other similar proceedings under applicable laws, whether voluntary or involuntary, admits in writing its inability to pay its debts, or makes or attempts to make an assignment for the benefit of creditors . Such termination shall be effective upon written notice to such Party or as soon thereafter as is permitted by applicable law.
- 12.4 MTMO Events. ICSC may suspend its provision of Licensed Technology in the event that the MTMO (i) withdraws any right necessary for ICSC to provide any Licensed Technology or to use any ICSC Internal Use Technology, or terminates its Marlin Client Agreement with ICSC, or (ii) withdraws any right necessary for Seacert Corporation to provide any Provisioning Packets, or terminates its Marlin Trust Service Provider Agreement with Seacert Corporation.
- 12.5 Effect of Termination.
- 12.5.1 Following the expiration or any termination of this Agreement for any reason, (i) ICSC shall immediately cease providing Company any Licensed Technology, and Support Plan services, (ii) the licenses granted in Section 2.2 shall terminate immediately; and (iii) Company shall promptly return or securely destroy (and certify such destruction in a writing reasonably acceptable to ICSC) all ICSC Confidential Information in the possession of Company or its Authorized Contractors (including all such information that has been copied, summarized or referenced in any Company documents).
- 12.5.2 Sections 1, 2.2, 2.3, 4.7, 4.9, 5 (but only as to Necessary Claims on inventions having an effective filing date earlier than (1) year after termination of this Agreement), 6.4 (until all amounts due ICSC have been paid), 6.5, 6.6, 7.5.3, 7.5.4, 9-13 and 15, and this Section 12.5 shall survive the termination of this Agreement.
- 12.5.3 Company shall pay all amounts due to ICSC within thirty (30) days of ICSC’s final invoice (by automatic credit card payment or otherwise).
- 12.5.4 Neither Party shall be liable to the other for damages of any sort resulting solely from its terminating this Agreement in accordance with its terms.
- 13. LIMITATION OF LIABILITIES
- 13.1 LIMITATION OF AMOUNTS OF INTERTRUST’S LIABILITY; EXCLUSIVE REMEDY. COMPANY AGREES THAT, EXCEPT WITH RESPECT TO INTERTRUST BREACHES OF SECTION 6 OF THIS AGREEMENT, THE TOTAL, CUMULATIVE LIABILITY OF INTERTRUST AND ITS AFFILIATES, WHETHER IN CONTRACT (INCLUDING FOR PERFORMANCE OF ANY INTERTRUST INDEMNIFICATION OR OTHER PROVISION OF THIS AGREEMENT), TORT, OR OTHERWISE, SHALL NOT EXCEED the lesser of i) THE amount Company paid to Intertrust in the one year period prior to THE claim OR ii) TWO HUNDRED THOUSAND UNITED STATES DOLLARS (US$200,000). EXCEPT AS PROVIDED IN THE FOLLOWING SENTENCE, COMPANY’S AND ITS AFFILIATES’ EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY INTERTRUST OR AN INTERTRUST AFFILIATE WILL BE THE RECOVERY OF DAMAGES INCURRED, LIMITED TO THE FOREGOING AMOUNT. INTERTRUST’S OBLIGATIONS IN SECTION 10 ARE SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION. NOTHING IN THIS SECTION LIMITS COMPANY’S ABILITY TO TERMINATE THIS AGREEMENT.
- 13.2 EXCLUSION OF CERTAIN DAMAGES AND LIMITATION OF TYPES OF LIABILITY. EXCEPT WITH RESPECT TO AMOUNTS PAYABLE TO THIRD PARTIES UNDER THE INDEMNITY OBLIGATIONS HEREUNDER, AND BREACHES OF SECTIONS 1, 2.1, OR 6, OR AS PROHIBITED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS REPRESENTATIVES BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, LOST PROFITS, LOST REVENUE OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE LICENSED TECHNOLOGY, DEVELOPED TECHNOLOGY, OR A COMPANY SERVICE. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT OR PRODUCT LIABILITY. THIS EXCLUSION AND LIABILITY LIMITATION SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- 14. GENERAL
- 14.1 Notices. Any notices or consents required of ICSC or permitted by ICSC under this Agreement (other than those provided pursuant to Section 12.2) will be in writing and delivered by email to the Company e-mail address supplied in Company’s account, with a confirmation copy delivered by certified mail, postage prepaid, return receipt requested, or by a reputable courier delivery service to the Company address supplied in Company’s account. Any notices or consents required of Company or permitted by Company under this Agreement, other than notices provided by Company to ICSC under a Support Plan, will be in writing and will be delivered by certified mail or courier delivery service to 920 Stewart Drive, Suite 100, Sunnyvale, CA 94085 USA, Attention: Legal Department, with a copy sent to [email protected].
- 14.2 Independent Contractors. Nothing in this Agreement should be construed as creating an agency, partnership, joint venture, franchise, or employment relationship between the Parties. Neither Party has the authority to make any statements, representations or commitments of any kind or to take any action binding on the other except to the extent (if any) provided for in this Agreement.
- 14.3 Equitable Remedies. Each Party agrees that it may be impossible or inadequate to measure and calculate a Party’s damages from any breach of the obligations set forth in Sections 1.3, 1.4, 2.1, 2.3, 4.1, 6, and 12.5.1. Accordingly, each Party agrees that if it or any of its agents breach, threaten an imminent breach, or anticipatorily repudiate any such provision, in addition to any other right or remedy available, the other Party shall be entitled to injunctive relief, specific performance, and/or other equitable relief as applicable. The Parties further agree that in no such case will it be entitled to (nor shall it assert any claim or defense) that the other Party has or had an adequate remedy at law.
- 14.4 Governing Law; Dispute Resolution. This Agreement shall be construed and controlled by the laws of the State of California (excluding any conflicts of laws principles that would result in the application of the laws of a different jurisdiction). Except as provided in the following paragraph, venue over all disputes arising under or related to this Agreement must be in the state and federal courts within the State of California and County of Santa Clara. Both Company and ICSC irrevocably waive all defenses of lack of personal jurisdiction and forum non conveniens for actions commenced in those courts.
- In the event that Company is headquartered outside of the United States and its territories and does not have any subsidiaries or assets in the United States or its territories, the Parties agree that all disputes arising under or related to this Agreement shall be submitted to binding arbitration in accordance with the JAMS International Arbitration Rules. Any such arbitration will be conducted in English before a single arbitrator in Santa Clara County, California, U.S.A. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
- The remainder of this Section notwithstanding, either Party may apply to any court at any time to obtain any injunctive or other equitable relief necessary to prevent it from suffering or continuing to suffer an injury with respect to which there is no adequate remedy at law. Process may be served on either Party in the manner authorized by applicable law, court rule, or the JAMS International Arbitration Rules (in the case of arbitration). In any litigative or arbitral action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing Party shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees and costs incurred in connection with such action, including any appeal of such action.
- 14.5 Export Restrictions. Company acknowledges that the Licensed Technology is subject to U.S. export jurisdiction. Company shall comply with all applicable international and national laws that apply to the Licensed Technology, including the U.S. Export Administration Regulations, as well as end-user, end use and destinations restrictions issued by U.S. and other governments.
- 14.6 Assignment. Company may not assign this Agreement, or any rights or obligations hereunder, whether by operation of contract, law or otherwise, except with the express written consent of ICSC. Any attempted assignment of rights or delegation of performance in violation of this Section is void.
- 14.7 Construction. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party. The Parties and their respective counsel have had an opportunity to review this Agreement which will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party.
- 14.8 Order of Precedence. In the event of a conflict between any provision of any exhibits or appendices to this Agreement and any order, on one hand, and a provision appearing in the body of the Agreement, on the other hand, the provision appearing in the body of the Agreement shall control and prevail.
- 14.9 Entire Agreement. This Agreement, including any exhibits and appendices attached hereto, which are incorporated by this reference, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous communications, negotiations and agreements, whether written or oral, between the Parties. No unilateral terms or conditions on materials issued by Company, including without limitation, purchase orders, purchase agreements, and order forms, will be used to interpret or amend the Parties’ legal rights and responsibilities as they pertain to this Agreement or the Licensed Technology and the Support Plan services. This Agreement shall come into effect when the Company Representative provides the information requested at the end of this Agreement and executes this Agreement by clicking the “We Accept” button below.
- 14.10 Force Majeure. Neither Party shall be liable to the other Party or its Affiliates for non-performance or delay in performance of any of its or its suppliers’ obligations under this Agreement, other than the obligation to pay amounts due to the other Party in a timely manner, due to causes reasonably beyond its control including, but not limited to, fire, flood, epidemic, natural disasters, strikes, lock-out, labor trouble, other industrial disturbances, systemic electrical, telecommunications, or other utility failures, lack of raw materials or supplies, failure in third party software, unavoidable accidents, blockages, embargoes, Internet or other service provider failure or delay, governmental regulations, acts or orders, war, riots, acts of terrorism or sabotage, and insurrections. Immediately after the cause is removed, the Party suffering the event(s) of force majeure shall perform such obligations with all due speed. Should any event of force majeure continue for thirty (30) days or more, either Party may terminate this Agreement upon written notice to the other Party.
- 14.11 U.S. Government End-Users. Each of the components that constitute the Licensed Technology is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Licensed Technology with only those rights set forth herein.
- 14.12 Governing Language. This Agreement is written in English. In the event this Agreement is translated into any language other than English, the original English version shall control and prevail on any question of interpretation or otherwise.
- 14.13 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
- 15. DEFINITIONS
- 15.1 “Affiliate” means an entity that directly or indirectly controls or is controlled by, or is under common control with a person or entity where control is realized via ownership of more than fifty percent (50%) of the voting power or equity or its equivalent (for non-voting or non-equity controlling), so long as such control exists.
- 15.2 “Company Service” means a Licensed Service (as defined in the Marlin Service Provider Agreement) that Company provides, in part, by operating Developed Technology.
- 15.3 “Customer” means an end user person to whom a Company Service has been Provided.
- 15.4 “Developed Technology” means certain Licensed Technology, in source and/or object code form, as it may have been modified by or for Company under this Agreement solely for the purpose of enabling Company to provide a Company Service.
- 15.5 “Intellectual Property Rights” means any and all intellectual property rights, including, without limitation, all patents, patent applications, copyrights, trademarks, trade secrets, semiconductor IC topography rights, inventions, know-how, utility models, and other proprietary rights, and all registrations, applications, renewals, extensions, combinations, divisions, continuations, reexaminations or reissues of the foregoing.
- 15.6 “Intertrust Property” has the meaning ascribed to it in Section 1.4(a).
- 15.7 “Limited Maintenance and Support Service” means the service described in Exhibit D.
- 15.8 “Marlin Service Provider Agreement” means the Marlin Service Provider Agreement Version 2.0 published March 9, 2011 by the Marlin Trust Management Organization, as amended.
- 15.9 “Marlin Developer Community” means the Marlin Developer Community LLC, a limited liability company organized under the laws of the State of Delaware, and any successor organization, having Intertrust as at least a partial shareholder.
- 15.10 “Marlin Specifications” means the specifications adopted and approved, from time to time, by the Marlin Developer Community, and accessible to Company at www.marlin-trust.com/operations.
- 15.11 “Necessary Claims” means any and all claim(s), but only such claim(s), of a patent or patent application that (i) are owned or controlled, or sublicensable without payment of royalties to and/or requiring the consent of an unaffiliated third party, now or at any future time; and (ii) are necessarily infringed in connection with the use or implementation of the Licensed Technology. Notwithstanding the foregoing sentence, Necessary Claims do not include any claims: (x) to any enabling technologies that may be necessary to make or use any product or portion thereof that includes the Licensed Technology (e.g., enabling semiconductor manufacturing technology, compiler technology, object oriented technology, operating system technology, protocols, programming interfaces, etc.); (y) covering the implementation of other specifications, technical documentation or technology merely referred to in the Licensed Technology; or (z) covering a disclosed standard to the extent such claims are available for licensing via a patent pool or other industry-recognized means. “Provided” (and its correlate “Provision”) shall mean sold, leased, licensed, otherwise made available for use by a Customer, whether for a charge or no charge, and regardless of whether the Customer is a registered user of a Company offering.
- 15.12 “Royalty” means the applicable per transaction fee set forth in Exhibit C that is to be paid by Company to Intertrust in consideration of the rights granted by Intertrust to Company herein.
- 15.13 “Royalty-Bearing Transaction” means any of the events identified in Exhibit C as giving rise to an obligation upon Company to pay Intertrust a Royalty.
- 15.14 “SDK” means software development kit.
EXHIBIT A – The Licensed Technology
EXHIBIT B – Affiliate Joinder Agreement
EXHIBIT C – Royalties
EXHIBIT D – Limited Maintenance and Support Service
EXHIBIT E – Ticket Service
The Licensed Technology
The Licensed Technology
The Licensed Technology consists of:
- • Bluewhale SDK: Bluewhale 4.11, binaries: marlin-broadband-server-4.11.0.zip
- • All releases and fixes provided to Customer pursuant to Section 1.6 and Exhibit D.
Affiliate Joinder Agreement
Affiliate Name: ___________________________
Authorized Representative: ___________________________
Except where indicated otherwise, all capitalized terms in this Affiliate Joinder Agreement shall have the meanings ascribed to them in that certain Bluewhale SDK License between Intertrust Technologies Corporation (“Intertrust”) and ________________________ dated _____________, 2016 (the “Agreement”).
________________________________, having conducted a thorough and complete review of the Agreement and understanding the meaning of its content, hereby represents, warrants, covenants, agrees and acknowledges:
- 1. that it is an Affiliate of Company;
- 2. that it intends to receive Licensed Technology and /or Developed Technology commencing ______________, 2016;
- 3. that the Developed Technology that Company shall disclose to it and permit it to use consists of _____________________________________________________________________________________________________________________(“Identified Developed Technology”);
- 4. that it shall use such Licensed Technology and/or Identified Developed Technology for no purpose other than to develop, test, provide and sell the following Company Services: ____________________________________________________________________________________________________________________________________________________. (“Identified Company Services”); and
- 5. that, in consideration of Intertrust granting Company the right to permit Affiliate to receive Licensed Technology and/or the Identified Developed Technology from Company and to use them in the manner permitted by the Agreement, it agrees
- a. to use the Identified Licensed Technology and Developed Technology only to develop, test, provide and sell the Identified Company Services;
- b. to comply fully with, and to be bound by, the terms and conditions of Agreement, and, in particular, to use the Licensed Technology and Identified Developed Technology only in the manners permitted by the Agreement, and, in the event that it breaches the Agreement, to accept full responsibility and liability for such breach;
- c. to execute and provide Intertrust additional executed Affiliate Joinder Agreements (in the form of this agreement) at least 10 days prior to (i) its receipt from Company of any Licensed Technology or Developed Technology that contains, practices or utilizes any Licensed Technology or Developed Technology that has not been identified in a previous Affiliate Joinder Agreement submitted by Company to Intertrust or (ii) its use of any Licensed Technology or Identified Developed Technology to develop, test, provide or sell any Company Service that has not been identified as an Identified Company Service in a previous Affiliate Joinder Agreement submitted by Company to Intertrust; and
- d. that any and all notices, invoices, or other communications required or permitted by the Agreement or by law to be served on Affiliate shall be in writing and delivered or sent to:
Facsimile Number: ___________________________.
IN WITNESS WHEREOF, Affiliate has executed this Affiliate Joinder Agreement as of the date written below.
Print Name: ___________________________
Limited Maintenance and Support Service
- 1. Definitions.
- (a) “Functional Release” means a subsequent release of Licensed Technology that implements features and functionality not previously present in the Licensed Technology. Functional Releases will generally be backward compatible, such that code using the public interfaces (only) of a previous Functional Release will not require modification to use the new release. At times, however, incompatibilities may be introduced, as reflected in the release version numbering scheme set forth in Appendix 2. Functional Releases include applicable fixes made in the current Maintenance Release. Not all Functional Releases are necessarily supported, and there is no representation of compatibility on any internal or non-documented interfaces.
- (b) “Initial Response Time” means the length of time after Intertrust’s receipt of notice of a Problem during which Intertrust shall initiate a technical assessment of the Problem and acknowledge to Company its receipt of notice of the Problem.
- (c) “Maintenance Release” means a subsequent release of Licensed Technology that corrects, patches or otherwise fixes any Problem (which may be reported by any source) without providing any features or functionality in addition to those provided by the previous release of the Licensed Technology. Maintenance Releases are cumulative and also include applicable One-off Bug Fixes made up to the code freeze for the Maintenance Release.
- (d) “One-off Bug Fix” means an exceptional fix to an extremely severe problem that is needed prior to the next scheduled Maintenance Release.
(e) “Problem” means a defect where a Versioned Software Release listed in Appendix 1 does not perform as defined in its documentation. Problems are classified in four (4) categories:
- • Critical Problem. A Problem that causes major and immediate service interruption or disruption for which no work-around is available. Critical Problems will likely be resolved via One-off Bug Fixes.
- • Major Problem. A Problem that causes significant service interruption or disruption, but for which a work-around exists but is difficult or expensive to deploy.
- • Minor Problem. A Problem for which a solution is required and a work-around exists and is relatively easy to deploy.
- • Trivial Problem. A Problem for which a solution is nice to have but not required.
- (f) “Problem Resolution” means the implementation and release of a correction, patch, fix, alteration, or temporary workaround that eliminates a Problem.
- (g) “Target Resolution Time” means the time objective for Intertrust to either resolve the Problem or define a mutually acceptable resolution plan (presuming that Intertrust is provided access to the relevant Licensed Technology during a period in which the system on which it resides is not undergoing maintenance or otherwise unavailable).
- (h) “Ticket” means the mechanism defined by Intertrust to record Problems and track their resolution.
- (i) “Versioned Software Release” means a versioned package of source code or binaries with well-defined and documented public interfaces, performance measures, changes from applicable previous releases, and test coverage. Versioned Software Releases come in different types and may have specific lifetimes, as set forth in Appendix 2.
- 2. Company Responsibilities. Intertrust will only accept Problems reported by Company using the mechanism defined herein. For a Problem to be accepted for resolution, Company must provide a reproducible case using one of the specified release versions listed in Appendix 1, using tools available or made available to Company by Intertrust. If a specific device is necessary to reproduce the Problem, the device as well as the necessary tools and instructions to debug, build, and test the device image must be made available to Intertrust. If access to a server is necessary to observe the Problem or collect logs, access to that server must be provided.
- 3. Issuance of Releases. During the period that Company subscribes to this service, Intertrust shall provide Company all Functional Releases, Maintenance Releases and One-off Bug Fixes, as they are issued by Intertrust in its discretion. It is currently anticipated that Maintenance Releases will occur generally at three (3) month intervals unless no bugs have been fixed in the previous 3 months.
- 4. Problem Reporting and Resolution. Problems may be reported by submitting information describing them to the Intertrust Support Portal. Intertrust shall not be obligated to engage in any Problem Resolution concerning any problem reported pursuant to this section unless and until Company complies with the requirements set forth in Exhibit E pertaining to the ordering of Ticket Service.
- 5. New Feature Requests or Suggestions. Requests for new features or for functionalities beyond those described in the current documentation of each Licensed Technology are not subject to this Exhibit and will be treated by Intertrust in its sole discretion. Company shall communicate to Intertrust its knowledge of any problems encountered with the Licensed Technology or any modifications, design changes, or improvements of the Licensed Technology that it recommends (“Enhancements“). Company further agrees: (i) that Intertrust shall own all rights, title, and interest in and to any modifications, enhancements, or improvements to the Licensed Technology made by Intertrust as the result of a suggestion provided by Company, without the payment of any additional consideration thereof to Company; and (ii) that, if applicable upon Intertrust’s reasonable request, it will cooperate with Intertrust in connection with perfecting and enforcing Intertrust’s rights, title, and interest thereto.
- 6. Warranty. Intertrust represents and warrants that the services provided under this Exhibit will be performed in a professional and workmanlike manner. Should Company report to Intertrust within 10 business days of its receipt of services hereunder that such services have not been in compliance with such warranty, Company’s sole and exclusive remedy shall be to have Intertrust re-perform the relevant services until the defect(s) in such services is/are rectified, at no additional charge to Company. THE FOREGOING PROVIDES INTERTRUST’S ONLY WARRANTIES TO COMPANY REGARDING THE SERVICES PROVIDED UNDER THIS EXHIBIT, AND COMPANY’S ONLY REMEDY FOR BREACH OF SUCH WARRANTIES. ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ARE EXPRESSLY DISCLAIMED.
Appendix 1 – Versioned Software Releases Covered by this Agreement
(including maintenance release streams)
Appendix 2 – Release Version Numbering & Support Lifetime
Release Version Numbering
The numbering notation follows the N.f.m.b convention, where:
- • N is a major Functional Release that breaks compatibility with an N-1 version
- • f is a Functional Release that maintains backward compatibility with the f-1 version
- • m is a Maintenance Release that contains only identified bug fixes with respect to the m-1 release
- • b is a One-off Bug Fix release that fixes only a given set of bugs
For clarity, lesser version streams are said to be “subordinate” to higher version streams. As such, Functional Releases are subordinate to major Functional Releases, and Maintenance Releases are subordinate to Functional Releases.
Software Release Support Lifetime
A number of the software items covered by this exhibit have a product lifecycle typical of Commercial Off The Shelf (COTS) software that is independent of the specific project with respect to which it is deployed by Company. As a result, Functional Releases and Maintenance Releases often include features and bug fixes made at the request of third parties. In addition, specific versions of Functional Releases and Maintenance Releases are retired after a certain period of time. Once retired, any support for that specific N.f.m version is no longer available. Unless explicitly specified in an Addendum to this document, the following timelines apply:
- • Maintenance Releases of version “m-1” are retired 6 months after the release of the Maintenance Release of version “m” (based on the same N.f stream).
- • Functional Releases of version “f-1”, and all subordinate releases thereof, are retired 1 year after the release of the version “f”.
Major Functional Releases of version N-1 are only retired if no commercial support agreements exist to extend their support. When version N is retired, all subordinate Functional Release and Maintenance Release versions are retired.
- 1. Ticket Service Description.
- A. Intertrust shall make a commercially reasonable effort to assist Company in achieving Problem Resolution with respect to the unmodified Licensed Technology.
- B. Requests for such assistance may only be initiated by Company submitting a Ticket to Intertrust through the Intertrust Support Portal.
- C. Upon receipt of a Ticket, Intertrust shall docket the Ticket and send a designated Company Representative an email acknowledging receipt of the Ticket and requesting immediate payment of the Ticket Fee by means of a PayPal Invoice payable via Company’s Paypal Account or via credit card. All payments shall be non-refundable.
- D. Intertrust shall commence its efforts to achieve Problem Resolution within one week of the later of Company’s submittal of a Ticket or Intertrust’s receipt of a Ticket Fee for the Ticket by means of PayPal, and shall acknowledge its commencement of such efforts by posting a notice to that effect on Intertrust Support Portal.
- E. Company shall supply Intertrust one or more examples of how the problem can be reproduced using the unmodified Licensed Technology, and all of the documentation described in Section 1(D) above. In addition, at Intertrust’s request, Company shall obtain any other information that Intertrust deems pertinent to its investigation.
- F. In those instances in which Intertrust cannot reproduce the problem using the Licensed Technology provided to Company, Company shall provide Intertrust access to servers, software tools and other relevant software and information.
- G. Intertrust shall attempt to resolve each Ticket within one (1) month of its receipt, but cannot guarantee problem resolution during that period.
- H. Tickets shall be closed when (i) the reported problem cannot be reproduced, (ii) Intertrust determines that Problem Resolution has been achieved, (ii) the reported problem is found to be a new feature rather than a bug, (iii) Intertrust commits to when it will correct the problem (e.g., in the next scheduled maintenance release or never) or (iv) Customer has not responded to Intertrust communications concerning the problem over the prior two (2) weeks.
- I. Intertrust shall have the right to cease its efforts to cease its Problem Resolution efforts, if it becomes apparent Intertrust that the completion of such efforts will require more than five (5) person hours of effort by Intertrust’s staff.
- 2. Service Disclaimer.
- • circumstances beyond the reasonable control of Intertrust and its suppliers, including, without limitation, acts of any governmental body, terrorism, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the internet;
- • failure of Company’s or its Manufacturer’s access to the internet or any other connections or access, unless such failure has been caused solely by Intertrust or its suppliers;
- • the acts or omissions of Company or the Manufacturer (or act or omissions of others engaged or authorized by Company or the Company), including without limitation, any negligence, willful misconduct, or use of the Licensed Technology and supporting infrastructure in a manner contrary to the applicable requirements of its documentation; or
- • use of the Licensed Technology other than strictly according to the terms of this Agreement; (ii) modification of the Licensed Technology by Company or any third party; or (iii) any combination or integration of the Licensed Technology with hardware, software and/or technology not provided by Intertrust.
- 3. Warranty.
Intertrust represents and warrants that the services provided under this Exhibit will be performed in a professional and workmanlike manner. Should Company report to Intertrust within 10 business days of its receipt of services hereunder that such Services have not been in compliance with such warranty, Company’s sole and exclusive remedy shall be to have Intertrust re-perform the relevant services until the defect(s) in such services is/are rectified, at no additional charge to Company. THE FOREGOING PROVIDES INTERTRUST’S ONLY WARRANTIES TO COMPANY REGARDING THE SERVICES PROVIDED UNDER THIS EXHIBIT, AND COMPANY’S ONLY REMEDY FOR BREACH OF SUCH WARRANTIES. ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ARE EXPRESSLY DISCLAIMED.
Intertrust shall be excused from attempting to achieve Problem Resolution if its efforts to do so are impeded by:
Intertrust shall also be excused from attempting to solve any problem that is determined to be a “false positive” reported as the result of outages or errors of any measurement system utilized by Company, the Manufacturer or others.