license-text.hbs

<p>LICENSE AGREEMENT</p>
<p>NPM, INC., A DELAWARE CORPORATION (THE "LICENSOR") IS WILLING TO LICENSE
  THIS SOFTWARE TO YOU (THE "LICENSEE") ONLY ON THE CONDITION THAT
  LICENSEE ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT (THE
  "AGREEMENT"). This is a legal
  agreement between Licensee (either an individual end-user or an entity) and
  Licensor with respect to Licensee's access and use of
  Licensor's proprietary software, content and related documentation
  and information and any other such service provided by Licensor.
  Licensee must accept all of the terms, conditions, and notices
  contained in this Agreement, without modification, in order to access
  and/or use the Licensed Technology (as defined below). By using the
  Licensed Technology, Licensee is agreeing to be bound by the terms and
  conditions of this Agreement. If Licensee does not agree to the terms and
  conditions of this Agreement, Licensee may not access or use the Licensed
  Technology, and Licensee must promptly cancel the downloading and/or
  installation of the Licensee, or if Licensee has downloaded and installed
  the Licensed Technology, then Licensee must stop using the Licensed
  Technology and destroy any copies of the Licensed Technology in
  Licensee's possession or control. Licensor and Licensee are sometimes
  referred to herein individually as a "Party" or collectively as
  the "Parties".</p>
<p></p>
THIS AGREEMENT IS MADE IN
CONNECTION WITH LICENSEE'S SUBSCRIPTION AND ORDER FORM FOR ACCESS TO
THE LICENSED TECHNOLOGY (THE "ORDER FORM").   THE ORDER
FORM IS HEREBY INCORPORATED HEREIN BY THIS REFERENCE.
<p>In consideration of the promises and
  covenants set forth herein, the Parties hereto agree as follows:</p>
<p>1.        Definitions.
  For purposes of this Agreement, the terms
  below have the following meanings whenever capitalized:</p>
<p>"Affiliates" means the parent
  company of a Party, and any present or future company that Controls, is
  Controlled by, or is under common Control with such Party, including any
  subsidiary of such Party.</p>
<p>"Business Day" shall mean any day
  except Saturday, Sunday, or a legal holiday</p>
<p>"Business Hours" means 10:00 am
  PST to 6:00 pm PST on a Business Day.</p>
<p>"Control" (including with its
  correlative meanings, "Controlled by",
  "Controlling", and "under common Control with")
  means possession, directly or indirectly, of power to direct or cause the
  direction of management or policies, whether through ownership of
  securities or partnership or other ownership interests, by contract or
  otherwise.</p>
<p>"Documentation" means, in digital,
  printed or other form, the technical, user and reference manuals, notes,
  instructions and summaries, technical release notes, and any other
  supporting documentation related to the Software.</p>
<p>"Field
  of Use" means Licensee's internal
  business purposes.</p>
<p>"Intellectual Property Rights"
  means any and all right, title and interest, arising or existing as of the
  Effective Date or at any time thereafter, anywhere in the world, including,
  but not limited to, all copyright, moral rights, patent, patent
  registration, service mark, service name, trade name, trade secret,
  trademark, or other proprietary right arising or enforceable under any
  United States federal or state law, rule or regulation,
  nonUnited States law, rule or regulation or international
  treaty.</p>
<p>"Licensed Technology" means the
  Software and Documentation and any and all related Intellectual Property
  Rights.</p>
<p>"Licensed Users" mean employees,
  agents, and subcontractors of Licensee.</p>
<p>"Releases" means bug fixes,
  enhancements, maintenance releases, error corrections, upgrades, additions,
  improvements, modifications, extensions, new versions or successor or
  replacement products of or to any components of the Licensed Technology
  created by or for Licensor and made available by Licensor to
  Licensee.</p>
<p>"Software" means the source code
  and object code to the Source Code.</p>
<p>"Source
  Code" means the computer software set
  forth and described on the Order Form.</p>
<p>"Support Services" means the
  technical maintenance and support services and training provided by
  Licensor for the Software as more specifically set forth on the Order
  Form.</p>
<p>"Support Term" means the period of
  time Licensor must provide Support Services for the Software as set forth
  on the Order Form.</p>
<p></p>
<p>2.        License, Support
  & Cooperation.</p>
<p>2.1        License.  Subject to the terms of this
  Agreement (including, but not limited to, the limitations set forth in
  Section 3 and Section 5), Licensor grants to Licensee a nonexclusive,
  non-transferable, worldwide, enterprise wide license and right to use, copy
  and install the Licensed Technology at any location on an unlimited number
  of servers, workstations or machines owned, leased or controlled by, or
  operated on behalf of, Licensee, for use by up to that number of Licensed
  Users, as paid for by Licensee, solely for use in the Field of Use.
  Any other use of the Licensed Technology is expressly prohibited,
  unless prior written permission has been given by a duly authorized officer
  of Licensor.  The Licensed Technology is licensed, not sold.
</p>
<p>2.2                Support.
  During the Support Term, Licensor shall use commercially reasonable
  efforts to provide the Support Services during Licensor's Business
  Hours, at no extra charge to Licensee.  If requested by Licensee, for
  any additional Support Services, the Parties shall update the Order Form
  accordingly to include the terms of such additional Support Services, and
  Licensee agrees to pay the additional support fees as indicated on the
  Order Form (the "Additional Support
  Fees").   Additionally, Licensor may
  provide Releases to the Licensed Technology, in its sole
  discretion.</p>
<p>3.        License
  Restrictions.  </p>
<p>        3.1        Licensee
  Restrictions.  Licensee will use the Licensed
  Technology solely in the Field of Use.  Licensee will not directly or
  indirectly, alone or with any other party, modify or alter the Licensed
  Technology or allow any other party to modify or alter the Licensed
  Technology, other than as is necessary for Licensee's use in the
  Field of Use.  Licensee agrees that it will not, without
  Licensor's prior written consent, transfer, copy, sublicense, or
  provide any access of any kind to the Licensed Technology to anyone,
  including but not limited to customers or contractors of Licensee, and that
  Licensor may grant or withhold its consent in its absolute
  discretion.</p>
<p>        3.2        Licensor
  Covenant.  Licensor covenants that it will not
  license the Licensed Technology to any third party for use in the Field of
  Use.</p>
<p>4.        Fees; Taxes;
  Expenses.</p>
<p>4.1        License Fees and
  Support Fees.  Licensor offers to Licensee the
  Licensed Technology at the agreed-upon annual and monthly rate schedule
  described on the Order Form (the "License Fees").  The Annual Base
  License Fees (as defined n the Order Form) shall be due and payable upon
  expiration of the Trial Period (as defined in Section 4.2 below).
  Licensee must pay Licensor the Monthly License Fee (as defined n the
  Order Form) and any Additional Support Fees (if applicable) within thirty
  (30) days from the date of receipt by Licensee of such invoice.</p>
<p>4.2        Trial Period.
  Commencing on the Effective Date and ending
  thirty (30) days following the Effective Date (such period, the
  "Trial Period"), Licensee shall not be invoiced for the License Fees (e.g.,
  no Fees will be charged during the Trial Period).  Licensee may
  terminate this Agreement at any time during the Trial Period, pursuant to
  Section 8.3, and not be charged any subsequent Fees.  If Licensee does
  not terminate this Agreement prior to the end of the Trial Period, Licensee
  shall pay the applicable License Fees for the Term.  During the Trial
  Period, Licensee agrees not to use the Licensed Technology to install,
  upload, or execute any software or material that contains or has access to
  any of Licensee's confidential or proprietary information.   All
  terms of this Agreement shall apply during and after the Trial
  Period.</p>
<p>4.3        Taxes.
  The Parties do not intend that this Agreement will give rise to any
  tax liability on the part of either Party.  Licensee, however, agrees
  to pay any sales, use or other taxes or duties arising out of or in
  connection with this Agreement, not including Licensor's income tax,
  within thirty (30) days of Licensor's written demand setting forth
  the nature and amount of such fees and/or taxes.</p>
<p>4.4        Expenses.
  Licensee must reimburse Licensor for reasonable expenses which have
  been preapproved in writing by Licensee.  Licensor must provide
  Licensee with copies of original receipts and other documentation required
  by Licensee with regard to the expenses for Licensor to receive
  reimbursement for the expenses.</p>
<p>5.        Proprietary
  Rights.</p>
<p>5.1        Ownership.
</p>
<p>        a.        The Licensed
  Technology, in whole and in part and all copies thereof, and all
  modifications, enhancements, derivatives and other alterations of the
  Licensed Technology (including, but not limited to, all Intellectual
  Property Rights to the Licensed Technology), whether developed by Licensor,
  Licensee or others, are and will remain the sole and exclusive property of
  Licensor.  Licensee has no rights in the Licensed Technology or its
  modifications, enhancements, derivatives and other alternations, except for
  the license rights expressly granted in this Agreement.  </p>
<p>        b.        Neither Party's performance under this Agreement will be deemed
  to create any works for hire under Title 17 of the United States Code.
  Licensor will retain all copyright interest in the published and
  unpublished versions of the Licensed Technology and its
  modifications.</p>
<p>5.2        Trade
  Secrets.  </p>
<p>        a.        Licensee
  acknowledges and agrees that the Licensed Technology (including all
  modifications, enhancements, derivatives and other alterations) is
  confidential and represents Licensor's trade secret.  As a
  result, Licensee (i) will keep the Licensed Technology in strictest
  confidence and (ii) will not use, disclose, provide or otherwise make
  available, directly or indirectly, the Licensed Technology or allow the
  Licensed Technology to be made available to any person except those
  employees of Licensee who have a need to know.  Licensee will promptly
  report to Licensor any infringement of the confidentiality of the Licensed
  Technology of which it becomes aware.  Licensee will further indemnify
  Licensor for any damages, liabilities and expenses arising from a breach of
  this Section 5.2 by Licensee or its agents, and will take such steps as
  necessary to remedy any such breach.  Licensee will identify every
  person to whom the Licensed Technology has been made available in
  accordance the terms and conditions of this Agreement and will fully
  cooperate with Licensor in seeking injunctive or other relief against such
  person if such Licensed Technology is improperly used in violation of the
  terms of this Agreement.</p>
<p>        b.        The
  obligations of Licensee under this Section 5.2 do not apply to information
  that Licensee can demonstrate (i) was in its possession at the time of
  disclosure without confidentiality restrictions; (ii) at the time of
  disclosure by Licensor is generally available to the public or after
  disclosure becomes generally available to the public through no breach of
  agreement or other wrongful act by Licensee; provided, however, such
  information remains subject to confidentiality obligations regardless of
  its availability to the public or availability through unauthorized
  disclosure; (iii) was received from a third party without restriction on
  disclosure and without breach of agreement or other wrongful act by
  Licensee; or (iv) is independently developed by Licensee without reference
  to the confidential information of Licensor</p>
<p>        c.        In
  the event Licensee is required by law, regulation, stock exchange
  requirement or legal process to disclose any of Licensor's
  confidential information, Licensee must (i) give Licensor, to the
  extent possible, reasonable advance notice prior to disclosure so Licensor
  may contest the disclosure or seek a protective order, and
  (ii) reasonably limit the disclosure to the minimum amount that is
  legally required to be disclosed..</p>
<p>5.3        Intellectual
  Property Notices.  Licensee will not delete or
  in any manner alter the copyright, trademark, and other proprietary rights
  notices of Licensor and its licensors, if any, appearing on the Licensed
  Technology as delivered to Licensee.  Licensee will reproduce such
  notices on all copies it makes of the Licensed Technology and on all
  documentation accompanying the Licensed Technology.</p>
<p>6.        No Warranty;
  Limitation of Liability.</p>
<p>6.1        No
  Warranty.  LICENSEE
  UNDERSTANDS AND AGREES THAT THE LICENSED TECHNOLOGY IS DELIVERED TO
  LICENSEE "AS IS", WITH NO WARRANTIES OF ANY KIND, EXPRESS OR
  IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ARISING OR IMPLIED FROM
  USAGE OF TRADE OR COURSE OF DEALINGS AND NONINFRINGEMENT.  IN NO EVENT
  WILL LICENSOR BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL
  DAMAGES OF ANY NATURE OR KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO
  PERSONAL INJURY, PROPERTY DAMAGE, LOSS OF PROFITS OR OTHER ECONOMIC LOSS IN
  CONNECTION WITH, OR ARISING OUT OF, DELIVERING, INSTALLING, FURNISHING,
  MAINTAINING, SUPPORTING OR USING THE SOFTWARE, EVEN IF LICENSOR HAS BEEN
  ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.</p>
<p>6.2        Limitation of
  Liability.  EXCEPT FOR ANY BREACH OF EACH
  PARTY'S CONFIDENTIALITY OBLIGATIONS AND EACH PARTY'S RESPECTIVE
  INDEMNIFICATION OBLIGATIONS, NEITHER PARTY IS LIABLE UNDER ANY THEORY OF
  TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR
  LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR
  CONSEQUENTIAL DAMAGES OR THE LIKE, EACH OF WHICH IS HEREBY EXCLUDED BY
  AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER DAMAGES WERE FORESEEABLE OR
  WHETHER THE OTHER PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
  EXCEPT FOR LICENSOR'S RESPECTIVE INDEMNIFICATION
  OBLIGATIONS, LICENSOR'S TOTAL LIABILITY UNDER
  THIS AGREEMENT WILL BE LIMITED TO ANY FEES ACTUALLY PAID BY LICENSEE
  HEREUNDER.  THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN
  THIS SECTION 6 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED
  IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL
  PURPOSE.</p>
<p>7.        INDEMNIFICATION.
</p>
<p>7.1        By Licensee.
  Licensee agrees that it shall, at its own
  expense, defend, indemnify and hold harmless Licensor and its Affiliates
  (the "Licensor Indemnitees") from any liability, damage, cost, claim, or expense
  (including attorney's fees) of any kind arising out of or in
  connection with any third party claim brought against any Licensor
  Indemnitee based upon (a) Licensee's use of the Licensed Technology
  in a manner not authorized by this Agreement, and/or (b) any alleged breach
  of the provisions of Sections 3 or 5 of this Agreement.  </p>
<p>7.2        By Licensor.
  Licensor agrees that it shall, at its own
  expense, defend, indemnify and hold harmless Licensee and its Affiliates
  (the "Licensee Indemnitees") from any liability, damage, cost, claim, or expense
  (including attorney's fees) of any kind arising out of or in
  connection with any third party claim brought against any Licensee
  Indemnitee based upon (a) any allegation that the Licensed Technology
  provided pursuant to this Agreement infringes any patents, copyrights or
  other proprietary rights of any third party, provided that Licensor is
  promptly notified, rendered reasonable assistance by Licensee as may be
  requested by Licensor at Licensor's expense, and is permitted to
  direct the defense or settlement negotiations for such action.
</p>
<p>7.3        Procedure.        Each
  Party seeking indemnification under this Agreement (the
  "Indemnified Party") agrees to (i) promptly notify the other Party providing
  indemnification (the "Indemnifying
  Party") in writing of any indemnifiable
  claim, and (ii) give the Indemnifying Party the opportunity to defend or
  negotiate a settlement of any such claim at such Indemnifying Party's
  expense and cooperate fully with the Indemnifying Party, at such
  Indemnifying Party's expense, in defending or settling such claim.
  Each Indemnified Party reserves the right, at its own expense, to
  participate in the defense of any matter otherwise subject to
  indemnification by the Indemnifying Party. The Indemnifying Party shall
  have the right to settle any claim for which indemnification is available;
  provided, however, that to the extent that such settlement requires the
  Indemnified Party to take or refrain from taking any action or purports to
  obligate the Indemnified Party, then the Indemnifying Party shall not
  settle such claim without the prior written consent of the Indemnified
  Party, which consent shall not be unreasonably withheld, conditioned or
  delayed.</p>
<p>8.        Term and
  Termination.  </p>
<p>8.1        Term and
  Termination.  The Term of this Agreement shall
  commence on the Effective Date and shall continue for an initial term of
  thirteen (13) months (the "Initial
  Term").  Thereafter, this Agreement
  shall automatically renew for additional or successive period(s) of six (6)
  months each (each a "Renewal
  Term" and collectively with the Initial Term,
  the "Term"),
  unless either Party notifies the other Party in writing, on or prior to
  thirty (30) days before the expiration of the Initial Term or any Renewal
  Term, of its intent to terminate this Agreement at the conclusion of such
  Initial or Renewal Term.</p>
<p>8.2        Termination.
  This Agreement may be terminated: (i) by Licensor if Licensee is
  delinquent in making payment of any License Fees or Additional Support Fees
  (if applicable) due under this Agreement and continues to be delinquent for
  a period of thirty (30) days after the last day on which such payment is
  due; (ii) by either Party in the event a Party commits or permits any other
  breach of this Agreement and shall fail to remedy such breach within thirty
  (30) days after written notice of such breach is given by the non-breaching
  Party; (iii) by either Party in the event a Party petitions for
  reorganization, readjustment or rearrangement of its business or affairs
  under any laws or governmental regulations relating to bankruptcy or
  insolvency, or is adjudicated a bankrupt or if a receiver is appointed for
  either Party, or if either Party makes or attempts an assignment for the
  benefit of creditors, or is unable to meet its or their obligations in the
  normal course of business as they fall due; or (iv) by either Party in the
  event a Party ceases to do business for any reason.  Each Party agrees
  to give the other Party prompt notice in accordance with Section 11.1
  hereof if any of the conditions or events above occurs.</p>
<p>8.3        Termination During
  Trial Period.  At any time prior to the
  expiration of the Trail Period, either Party may terminate this Agreement
  immediately, with or without cause, upon written
  notice to the other Party.  </p>
<p>8.4        Effect of
  Termination.  Upon any termination of this
  Agreement, Licensee (a) will cease all use of the Licensed Technology
  (including, but not limited to, any copies thereof), and (b) will
  immediately return to Licensor or (at Licensor's request) destroy all
  copies of the Licensed Technology (including, but not limited to, any
  copies thereof) in its possession or control.  Except in the event of
  termination by Licensor pursuant to Section 8.2, upon early termination of
  this Agreement, Licensee shall be entitled to a prorated refund for full
  months unused. </p>
<p>8.5        Survival of
  Obligations.  The provisions of Sections 1
  (Definitions), 5 (Fees; Taxes; Expenses), 6 (Proprietary Rights), 7 (No
  Warranty; Limitation of Liability), 8 (Indemnification), 9.4 (Effect of
  Termination), 9.5 (Survival of Obligations), 9.6 (Nonexclusive Remedy), 10
  (Choice of Law) and 12 (General) will survive termination of this Agreement
  for any reason.</p>
<p>8.6        Nonexclusive
  Remedy.  The exercise by Licensor of any
  remedies under this Agreement will be without prejudice to its other
  remedies under this Agreement or otherwise.</p>
9.        Choice of
Law.  This
Agreement will be governed by and construed in accordance with the laws of
the state of California, excluding that body of law applicable to conflict
of laws.
<p></p>
<p>10.        Assignment.
  Licensee may not assign any rights in the
  Licensed Technology, or delegate any duties hereunder, to any person
  without Licensor's prior written consent, and any attempt to assign
  or delegate without that consent will be void.  Licensor may grant or
  withhold its consent in its absolute discretion.</p>
<p>11.        General.
</p>
<p>        11.1        Notices.
  All notices shall be in writing and shall be deemed to be delivered
  when received by certified mail, postage prepaid, return receipt requested,
  or when sent by facsimile or e-mail confirmed by call back.  All
  notices shall be directed to the Parties at the respective addresses given
  above or to such other address as either Party may, from time to time,
  designate by notice to the other Party.</p>
<p>        11.2        Severability.
  If any provision of this Agreement is found illegal or unenforceable,
  it will be enforced to the maximum extent permissible, and the legality and
  enforceability of the other provisions of this Agreement will not be
  affected.</p>
<p>        11.3        Waiver.
  No failure of either Party to exercise or enforce any of its rights
  under this Agreement will act as a waiver of such rights.</p>
<p>        11.4        Complete
  Agreement.  This Agreement, along with the
  attached Exhibit, is the complete and exclusive agreement between the
  Parties with respect to the subject matter hereof, superseding and
  replacing any and all prior agreements, communications, and understandings
  (both written and oral) regarding such subject matter.</p>
<p>11.5        Modifications.
  This Agreement may only be modified, or any rights under it waived,
  by a written document executed by both Parties.</p>
<p>11.6        Attorneys'
  Fees; Injunctive Relief.   With regard to
  any legal proceedings arising under or in connection with this Agreement by
  any Party, the prevailing Party will be entitled to recover its reasonable
  attorneys' fees, costs and other related expenses.  Licensee
  acknowledges that the disclosure of the Licensed Technology (including all
  modifications, enhancements, derivatives and other alterations) would cause
  substantial harm to Licensor that could not be remedied by payment of
  damages alone.  Accordingly, Licensor will be entitled to preliminary
  and permanent injunctive relief and other equitable relief for any breach
  of this Agreement.</p>
<p>        11.8        Headings.
  All headings contained in this Agreement are
  for reference only, and will have no meaning or effect with respect to any
  provisions of this Agreement.</p>
<p>        11.9        Cumulation
  of Remedies.  All remedies available to a
  Party are cumulative and may be exercised concurrently or separately; the
  exercise of any remedy will not be deemed an election of such remedy to the
  exclusion of other remedies.</p>
<p>        11.10        Full Power.
  Each Party warrants that it has full power to
  enter into and perform this Agreement, and the person signing this
  Agreement on each Party's behalf has been duly authorized and
  empowered to enter into this Agreement.</p>
<p>        11.11        Relationship of the
  Parties.  The relationship of the Parties
  hereto is one of contract only, and in no event shall the Parties be
  construed as partners, joint venturers, agents or principals of each
  other.</p>
<p></p>
<p>        11.12        Counterparts.
  This Agreement may be executed simultaneously
  in two or more counterparts, each of which will be considered an original,
  but all of which together will constitute one and the same
  instrument.</p>
<p></p>
<p></p>
<p>ALL SOFTWARE IS PROTECTED BY UNITED STATES
  COPYRIGHT LAWS AND INTERNATIONAL TREATY PROVISIONS. ANY UNAUTHORIZED
  REPRODUCTION OR REDISTRIBUTION OF THE SOFTWARE IS EXPRESSLY PROHIBITED BY
  LAW, AND MAY RESULT IN SEVERE CIVIL AND CRIMINAL PENALTIES.</p>
<p></p>
<p></p>
<p></p>