This software license agreement (Agreement) is by and between The Trustees of Columbia University in the City of New York (University) and _____________________________ a corporation having offices at ______________________ (Evaluation Licensee).
Now, therefore, the parties hereto agree as follows:
University hereby grants, and Evaluation Licensee hereby accepts, subject to the terms and conditions of this Agreement, a limited nonexclusive, nontransferable and nonassignable license to use and modify the Software in source code form for its own evaluation purposes only from the Effective Date hereof for a period not to exceed one (1) year therefrom, unless and until earlier terminated in accordance herewith. The Software and Documentation shall not be used for the benefit of any third party.
Evaluation Licensee shall have the limited right to copy or reproduce the Software and Documentation, in whole or in part, as necessary for its own evaluation purposes only. However, in no event shall more than five (5) copies of the Software and Documentation be made for Evaluation Licensee's internal use only. Evaluation Licensee agrees that the Software is University's confidential information and shall treat and handle confidential information in accordance with this Agreement.
Upon receipt of this Agreement, executed by Evaluation Licensee and accompanied by payment of the License Fee, University shall deliver to Evaluation Licensee, via electronic mail, a password enabling Evaluation Licensee to download the Software, in source code form, from electronically posted files.
Error Corrections and Updates. It is understood and agreed that University will provide no maintenance or installation services of any kind, error corrections, bug fixes, patches, updates or other modifications hereunder.
Incorporation Into Other Software. Evaluation Licensee may, in its discretion, and at its own and sole risk, incorporate the Software, or parts thereof, into other of its products, solely and exclusively for internal evaluation purposes and for no commercial use whatsoever, provided Evaluation Licensee strictly complies with the provisions of this Article 5 and Article 2 above and Evaluation Licensee s obligations under Articles 6, 7 and 8 below.
Use Limitation. Prior to any commercial use, lease, distribution, transfer, sublicense or sale of any product utilizing, derived from, or incorporating, in whole or any part, the Software and Documentation hereunder, Evaluation Licensee must obtain a license permitting commercial use of the Software and Documentation from University. Any such use, lease, distribution, transfer, sublicense or sale without a written license from University permitting such commercial use, distribution, sublicense or sale shall be VOID AND EXPRESSLY PROHIBITED.
Title to Incorporated Software. Title to and ownership of any portion of the Software or Documentation incorporated into any product for evaluation purposes shall at all times remain with University, and Evaluation Licensee shall not have any title or ownership interest therein.
Products Developed by University. Nothing contained in this Agreement shall be construed to limit University's rights to modify the Software or to develop other products which are similar to or offer the same or similar improvements as any products developed by Evaluation Licensee.
6.1 License Fee. In consideration of the limited evaluation license rights granted in Article 2 above, Evaluation Licensee shall pay the License Fee for the Software, and Documentation. All amounts payable hereunder by Evaluation Licensee shall be payable in United States funds without deductions for taxes, assessments, fees, or charges of any kind. If the License Fee is to be paid in the form of other consideration deemed acceptable by University, such consideration shall be delivered to University's designated premises with good and current title and, if applicable, shall be free of any and all defects.
Checks shall be made payable to "The Trustees of Columbia University in the City of New York," and shall be forwarded to University, along with this Agreement, signed by Evaluation Licensee to:
Executive Director
Columbia Innovation Enterprise
Engineering Terrace, Suite 363 MC 2206
500 West 120th St
New York, New York 10027
Fax: 212-854-8463
Phone: 212-854-8444
Alternatively, this Agreement, signed by Evaluation Licensee, may be sent to the above address and payment of the License Fee may be made through wire transfer to:
Chase Bank
Branch 91, 2824 Broadway
New York, New York 10025 USA
Credit to account: 091-006341
Routing #021-000021
Reference: Columbia Innovation Enterprise
Payment can also be made by credit card (MasterCard or Visa) by faxing your credit card number and expiration date to the Department of Computer Science (212 666 0140), attention Jonathan Lennox.
6.2 Taxes and Other Charges. Evaluation 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.
7.1 Proprietary Notices. Evaluation Licensee shall maintain and place on any copy of the Software which it reproduces for internal use, all such notices as are authorized and/or required hereunder. Evaluation Licensee shall use the following notice, or such other reasonable notice as University shall from time to time require, on each copy of the Software. Such notice shall be loaded in the computer memory for use, display, or reproduction and shall be embedded in program source code and object code, in the video screen display, on the physical medium embodying the Software copy, and on any Documentation and reference manuals:
Copyright (c) The Trustees of Columbia University in the City of New York. All rights reserved.
This software and documentation PROVIDED FOR EVALUATION PURPOSES ONLY constitute an unpublished work and contain valuable trade secrets and proprietary information belonging to Columbia University. None of the foregoing material may be copied, duplicated or disclosed without the express written permission of Columbia University. COLUMBIA UNIVERSITY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THIS SOFTWARE AND DOCUMENTATION, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE, AND WARRANTIES OF PERFORMANCE, AND ANY WARRANTY THAT MIGHT OTHERWISE ARISE FROM COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE USE OF THE SOFTWARE OR DOCUMENTATION. Under no circumstances shall Columbia University be liable for incidental, special, indirect, direct or consequential damages or loss of profits, interruption of business, or related expenses which may arise from use of software or documentation, including but not limited to those resulting from defects in software and/or documentation, or loss or inaccuracy of data of any kind.
7.2 Ownership. Evaluation Licensee further acknowledges that all copies of the Software in any form provided by University or made by Evaluation Licensee are the sole property of University. Evaluation Licensee shall not have any right, title, or interest in or to any such Software or copies thereof, and further shall secure and protect all Software and Documentation consistent with maintenance of University's proprietary rights therein. Evaluation Licensee further agrees not to distribute or transfer the Software to any third party.
7.3 Sublicenses. No license to sublicense the source code of the Software or any portion thereof is granted hereunder.
8.1 Acknowledgement. Evaluation 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, Evaluation 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 below.
8.2 Maintenance of Confidential Information. Evaluation Licensee agrees to keep confidential all confidential information disclosed to it by University in accordance herewith, and to protect the confidentiality thereof in the same manner Evaluation Licensee 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 Evaluation Licensee shall have any no 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 University to Evaluation Licensee; c) have become known publicly, without fault on the part of the Evaluation Licensee, subsequent to disclosure by University; (d) have been known otherwise by the Evaluation Licensee before communication by University; or (e) have been received by the Evaluation Licensee without any obligation of confidentiality from a source (other than the University) lawfully having possession of such information.
8.3 Injunctive Relief. Evaluation Licensee acknowledges that the unauthorized use, transfer or disclosure of the Software or 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 Evaluation 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.
8.4 Survival. Evaluation 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.
9.1 Disclaimer of Warranties. UNIVERSITY IS LICENSING THE SOFTWARE AND DOCUMENTATION ON AN "AS IS" BASIS ONLY. UNIVERSITY DOES NOT REPRESENT OR WARRANT THAT ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 9.1 ABOVE ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED BY UNIVERSITY. THERE ARE NO OTHER WARRANTIES RESPECTING THE SOFTWARE, 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.
9.2 Government Rights. Evaluation Licensee understands that the Software may have been developed with funding, in certain part, provided by 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.
9.3 Evaluation Licensee's Sole Remedy. University's entire liability and Licensee's exclusive remedy shall be, at University's sole option, to be exercised in its sole discretion, either (a) return of the License Fee, or the value of other equivalent consideration, paid to University by Evaluation Licensee, or (b) repair or replacement of the Software upon its return to University.
9.4 Limitation of Liability. Evaluation 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 EVALUATION LICENSEE's CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH EVALUATION LICENSEE'S USE OF THE SOFTWARE, AND DOCUMENTATION. ACCORDINGLY, EVALUATION 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 Evaluation 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 License Fee, or he value of other equivalent consideration, paid to University by Evaluation 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.
9.5 Assertion of Rights. Evaluation Licensee shall not assert any eight title or interest in the Software and/or Documentation.
Evaluation Licensee shall indemnify and hold harmless University, their Trustees, officers, agents and employees from and against any claims, demands, or causes of action whatsoever, including without limitation those arising on account of Evaluation 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 Evaluation Licensee, its subsidiaries or their officers, employees, agents or representatives.
11.1 Termination. This agreement shall terminate without notice one (1) year after the Effective Date of this Agreement.
11.2 Events of Default. In addition to termination pursuant to Section 11.1 above, 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 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; (3) 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 (4) 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.
11.3 Effective Date of Termination.Termination due to a material breach of Articles 2 (Grant of Rights), 5 (Derivative Products), 7 (Protection of Software), or 8 (Confidentiality) shall be effective on notice. In all other cases, other than termination pursuant to Section 11.1, 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.
11.4 Obligations on Termination. Within ten (10) days after termination of this Agreement, Evaluation Licensee shall cease and desist all use of the Software, and Documentation and shall at University's sole option return to University, or destroy, all full or partial copies of the Software, and Documentation in Evaluation Licensee's possession or under its control.
11.5 Survival. Sections 5.3 (Title to Incorporated Software), 9.1 (Evaluation Licensee's Sole Remedy), 9.3 (Disclaimer of Warranties), 9.4 and Articles 8, 10, 12, and 15 will survive termination of this Agreement for any reason whatsoever.
Except as set forth in Article 7 of this Agreement, Evaluation Licensee will not use the name of Columbia University or the name of any faculty member, trustee, other employee or student of Columbia University for any purpose whatsoever without University's prior written consent.
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. All notices to the University should be addressed as indicated in Article 6.
Evaluation Licensee shall not assign or transfer this Agreement or its rights hereunder without the prior written consent of University.
The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of New York. The New York state courts of New York County, New York (or, if there is exclusive federal jurisdiction, the United States District Court for the Southern District of New York) shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement, and Evaluation Licensee hereby consents to the jurisdiction of such courts.
The Software, Documentation and all related technical information or materials are subject to export controls and U.S. Government export regulations. Evaluation Licensee will comply strictly with all legal requirements established under these controls and will not, in connection with its limited evaluation rights hereunder, export, reexport, divert, transfer or disclose, directly or indirectly the Software, Documentation and any related technical information or materials without the prior approval of the U.S. Department of Commerce.
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.
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. This Agreement may be executed in counterparts and signatures sent by facsimile transmission shall be binding as evidence of acceptance of the terms of this Agreement by such signatory party.
In witness whereof, the parties have caused their duly authorized representatives to execute this Agreement.
THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK
By:
Michael Cleare
Executive Director
Columbia Innovation Enterprise
Date:
Evaluation Licensee
By:
Name:
Title:
Address:
Date:
e-mail:
Last updated by Henning Schulzrinne