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 _____________ ("Binary Licensee").
A. University has developed the Documentation and Software as defined below in Sections 1.1 and 1.3, which constitute and contain certain trade secrets of University.
B. University desires to grant to Binary Licensee and Binary Licensee desires to obtain from University a nonexclusive license to use the Documentation and to use the Software on a single Server providing SIP services to multiple SIP clients 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 "Documentation" shall mean all manuals, user documentation, and other related materials, if any, pertaining to the Software which are furnished to Binary Licensee by University in connection with the Software.
1.2 "License Fee" shall mean the sum of four hundred ninety five dollars ($495.00) per server per License Year, or other equivalent consideration which University, in its sole discretion, deems to be acceptable in lieu of cash payment.
1.3 "Software" shall mean the computer programs in object code form described in Exhibit "A" attached hereto supplied to Binary Licensee by University pursuant to this Agreement.
1.4 "Effective Date" shall mean the latest date of signature below.
1.5 "License Year" shall mean the interval from the Effective Date to the first anniversary thereof, and thereafter the interval between successive anniversaries of the Effective Date.
1.6 "Server" shall mean a computer on a network programmed to accept requests from and to provide facilities or services to other computers on the same network.
1.7 "SIP" shall mean Session Initiation Protocol as defined in a Proposed Standard (Feb. 2, 1999) published as RFC 2543 (March 17, 1999).
Use on a Single Server. University hereby grants, and Binary Licensee hereby accepts, subject to the terms and conditions of this Agreement, a limited, nonexclusive, nontransferable and nonassignable license to use the Documentation and to use the Software in object code form on a single Server from the Effective Date hereof, unless and until earlier terminated in accordance herewith. The Software may be transferred from one network Server to another, so long as the Software and Documentation are completely removed from the first network Server and are not shared or used concurrently on different network Servers.
Copies. Binary Licensee shall have the limited right to copy or reproduce the Software and Documentation, in whole or in part, as necessary for back-up purposes only. However, in no event shall more than one (1) copy of the Software and Documentation be made for Binary Licensee's use, such copy to be kept at Binary Licensee's place of business. Binary Licensee agrees that the Software is University's confidential information and shall treat and handle confidential information in accordance with this Agreement.
Third Parties. The Software and Documentation shall not be used for the benefit of any third party other than to provide the SIP Server functionality to SIP clients on a network. Binary Licensee's use and disclosure of the Software and Documentation is restricted sole to employees of Binary Licensee (or, with prior written consent of University, to its consultants) who have a need for access to the Software and/or Documentation and who are bound to preserve the confidentiality thereof. In addition to the confidentiality provisions contained herein, Binary Licensee shall not cause or permit disclosure, loan, publication, transfer of possession for any reason, or other dissemination of the Software and/or Documentation, in whole or in part, to any third party without the prior written consent of University.
Modifications. Binary Licensee shall not modify, enhance or otherwise change the Software without the prior written consent of University. Binary Licensee agrees that a modification or enhancement of the Software developed by Binary Licensee with or without the assistance of University, or by University for Binary Licensee whether or not reimbursed by Binary Licensee and whether or not developed in conjunction with Binary Licensee's employees, agents or contractors shall be the exclusive property of University. Binary Licensee further agrees that such modified or enhanced versions of the Software do not constitute software different from the Software, and shall be subject to the terms and conditions of this Agreement.
No Source Code. No license is granted hereunder to the source code for the Software, and Binary Licensee shall not receive such source code.
Upon receipt of this Agreement, executed by Binary Licensee accompanied by payment of the License Fee, University shall deliver to Binary Licensee, via electronic mail, a password enabling Binary Licensee to download the Documentation and the Software, in object code form, from electronically posted files.
4.1 Error Corrections and Updates. University may, in its sole discretion, but shall not be obligated to, provide Licensee with error corrections, bug fixes, patches or other updates to the Software licensed hereunder in object code form to the extent available in accordance with University's release schedule for a period of one (1) year from the date of this Agreement.
4.2 Other Modifications. Licensee may, from time to time, request that University incorporate certain features, enhancements or modifications into the Software. University may, in its sole discretion, undertake to (or not to) incorporate such changes and distribute the Software so modified to all or any of University's licensees.
4.3 Title to Modifications. All such error corrections, bug fixes, patches, updates or other modifications, if any, shall be the sole property of University.
Nothing contained in this Agreement shall be construed to limit University's rights to use for any purpose, copy, modify, enhance, update, adapt and make derivative works from the Software or to develop other products that are similar to or offer the same or similar improvements as any products developed by Binary Licensee, and to license the Software, and such modifications, enhancements, updated, adaptations, derivative works and other products to third parties. No license is granted hereunder to any such modifications, enhancements, updated, adaptations, derivative works or other products.
Payment. In consideration of the limited license rights granted in Article 2 above, Binary Licensee shall pay the License Fee for the Software and Documentation. All amounts payable hereunder by Binary 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 Binary Licensee to:
Executive DirectorAlternatively, this Agreement, signed by Binary Licensee, may be sent to the above address and payment of the License Fee may be made through wire transfer to:
Columbia Innovation Enterprise
Engineering Terrace, Suite 363 MC 2206
500 West 120th St
New York, New York 10027
Chase Bank
Branch 91, 2824 Broadway
New York, New York 10025 USA
Credit to account: 091-006341
Routing #021-000021
Reference: Columbia Innovation Enterprise
Taxes and Other Charges. Binary 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.
Proprietary Notices. Binary Licensee shall maintain and place on any copy of the Software which it reproduces all such notices as are authorized and/or required hereunder. Binary 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 placed and maintained by Binary Licensee on the physical medium embodying the Software copy, and on any Documentation and reference manuals. Binary Licensee shall not delete or alter any such notice that University has programmed in the Software, and/or embedded in the source code or object code of the Software, as delivered to Binary Licensee.
Copyright The Trustees of Columbia University in the City of New York.
© 1999 All rights reserved.
This software and documentation PROVIDED FOR USE ON A SINGLE NETWORK SERVER ONLY contain valuable trade secrets and proprietary information belonging to Columbia University. Reverse engineering, decompiling and disassembling are explicitly prohibited. 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 NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, 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.
Ownership. Binary Licensee acknowledges that all intellectual property rights in and to the Software and Documentation, including without limitation copyrights, patent rights and trade secret rights, shall remain solely and exclusively with University. Binary Licensee further acknowledges that the original and all copies of the Software and Documentation in any form provided by University or made by Binary Licensee are the sole and exclusive property of University. Except as provided hereunder, Binary Licensee shall not have any right, title, or interest in or to any such Software or Documentation, or copies thereof and further shall secure and protect all Software and Documentation consistent with maintenance of University's proprietary rights therein.
Reverse Engineering. Unless enforcement is prohibited by applicable law, under no circumstances may the Binary Licensee, or others on its behalf, reverse engineer, decompile, disassemble, "unlock" (as the term is generally used in the industry) the Software, re-engineer or otherwise create or attempt to create, or permit or assist others to create, the source code of the Software, or to derive its algorithms or structure.
Sublicenses. No right to sublicense the Software or Documentation or any portion thereof to third parties is granted hereunder.
Acknowledgement. Binary Licensee hereby acknowledges and agrees that the Software and Documentation constitute and contain valuable proprietary information and trade secrets of University, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, Binary 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.
Maintenance of Confidential Information. Binary Licensee agrees to keep confidential all confidential information, including without limitation the Software and Documentation, disclosed to it by University in accordance herewith and designated as confidential at the time of disclosure, and to protect the confidentiality thereof in the same manner Binary 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) and shall not disclose any such confidential information except on a confidential basis to its employees (or, with prior written consent of University, to its consultants) who have a need to have access to such confidential information and who are bound to preserve the confidentiality thereof, including not making any unauthorized copies, and shall not use any such confidential information except for purposes contemplated by this Agreement; provided, however, that Binary Licensee shall have no such obligation with respect to use or 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 thereof by University to Binary Licensee; c) have become known publicly, without fault on the part of the Binary Licensee, subsequent to disclosure thereof by University; (d) have been known otherwise by the Binary Licensee before communication by University; or (e) have been received by the Binary Licensee without any obligation of confidentiality from a source (other than the University) lawfully having possession of such information.
Injunctive Relief. Binary 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 Binary 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.
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. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES RESPECTING THE SOFTWARE, DOCUMENTATION OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, 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. Binary 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 Binary Licensee's Sole Remedy. University's entire liability and Binary 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 Binary Licensee, or (b) repair or replacement of the Software upon its return to University.
9.4 Limitation of Liability. BINARY LICENSEE ACKNOWLEDGES AND AGREES THAT UNIVERSITY SHALL NOT ASSUME THE RISK OF BINARY LICENSEE'S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH BINARY LICENSEE S USE OF THE SOFTWARE, AND DOCUMENTATION. ACCORDINGLY, BINARY LICENSEE AGREES THAT UNIVERSITY SHALL NOT BE RESPONSIBLE TO BINARY LICENSEE FOR ANY LOSS 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 Binary 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 the value of other equivalent consideration, paid to University by Binary Licensee for the Software whose license, use, or other employment gives rise to the liability.
9.5 Assertion of Rights. Except for the rights granted hereunder, Binary Licensee shall not assert any right, title or interest in the Software and/or Documentation.
Binary Licensee shall indemnify and hold harmless University, its Trustees, officers, agents and employees from and against any claims, demands, or causes of action whatsoever, including without limitation those arising on account of Binary 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 Binary Licensee, its subsidiaries or their officers, employees, agents or representatives.
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 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.
Voluntary Termination. Binary Licensee may terminate this agreement at any time by giving written notice to University.
Effective Date of Termination. Termination due to a breach of Articles 2 (Grant of Rights), 7 (Protection of Software), or 8 (Confidentiality) shall be effective on notice. In all other cases, termination shall be effective thirty (30) days after notice of termination to the defaulting party if the defaults have not been cured within such thirty 30) day period.
Obligations on Termination. Within ten (10) days after termination of this Agreement, Binary 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 Binary Licensee's possession or under its control.
Survival. Sections 9.1, 9.3, 9.4, and Articles 5, 8, 10, 12, and 15 will survive termination of this Agreement for any reason whatsoever.
Extensions of the Term of Agreement. Unless terminated in accordance with this Section 11, the term of this Agreement shall be automatically extended for successive License Years subject to Binary Licensee's timely payment of the License Fee in accordance with Article 6 hereof at least 30 days prior to the end of the current License Year. Binary Licensee may decline to extend this Agreement for any or no reason by providing University with no less than 90 days written notice of non-extension.
Except as set forth in Article 7 of this Agreement, Binary 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 to:
Executive Directorwith a copy to:
Columbia Innovation Enterprise
Engineering Terrace, Suite 363 MC 2206
500 West 120th St
New York, New York 10027
General Counsel
Columbia University
412 Low Memorial Library
535 West 116th Street, Mail Code 4308
New York, New York 10027
Binary 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 Binary Licensee hereby consents to the jurisdiction of such courts.
Binary Licensee shall cooperate with University as reasonably necessary to permit University to comply with the laws and administrative regulations of the United States relating to the control of exports of commodities and technical data ("Export Laws"). Binary Licensee hereby assures University that Binary Licensee will not export or re-export, directly or indirectly, including via remote access, any part of the Software or Documentation to any country for which a validated license is required for such export or re-export under the Export Laws without first obtaining such a validated license. Binary Licensee shall defend University against any and all claims, and indemnify University against any and all losses or expenses, arising from or otherwise in respect of any asserted violation of the Export Laws by Binary Licensee.
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.
Michael Cleare
Executive Director
Columbia Innovation Enterprise
Date: _________________
| Institution: | __________________________________________ |
| Address: | __________________________________________ |
| __________________________________________ | |
| By (Name and Title): | __________________________________________ |
| Signature: | __________________________________________ |
| Date: | ____________________________ |
| Name: | _____________________________ |
| Email: | _____________________________ |