Embedthis Software License
This is a License Agreement between Embedthis Software LLC. ("Embedthis") and you, the Licensee. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE PURCHASING THIS LICENSE. YOUR PAYMENT OF THE AGREEMENT INVOICE INDICATES YOUR FULL ACCEPTANCE AND YOU ARE AGREEING TO BE BOUND BY ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT. FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT VOIDS THE AGREEMENT, DISALLOWS LICENSEE USE OF THE SOFTWARE AND MAY GIVE RISE TO UNSPECIFIED DAMAGES.
"Integrated Product" means a single Licensee product that incorporate(s) the Software in binary form only, together with other hardware or software of significant value-add.
"Software" means the Embedthis Appweb or GoAhead software including all source code, headers, documentation, data files including updates and upgrades.
"Volume" means the authorized volume of Integrated Product units that may be shipped under this Agreement.
License to Use
1.0. Subject to the terms and conditions of this Agreement and receipt by Embedthis of all payments due under this Agreement, Licensee is hereby granted a worldwide, royalty-free, non-exclusive, non-transferable (except as permitted herein) right to:
a. Use, compile and modify the Software for the purposes of creating Integrated Products, and
b. Use, demonstrate, distribute, market, promote, rent, reproduce and sell authorized Volume of Integrated Product units containing the Software in binary form only.
c. Distribute the Software in source code form to Licensee customers for the sole purpose of supporting and maintaining Integrated Products. This does not include the right to sublicense the Software, nor does it permit Licensee customers to modify the Software or distribute the Software except when part of the licensed Integrated Product.
Term of License
2.1. This Agreement shall be effective for three (3) years from the Effective Date of this Agreement and shall thereafter automatically renew each year unless terminated earlier under the provisions of this Agreement.
2.2. Either party may terminate this agreement by written notice to the other party if the other party breaches any material provision of this Agreement and such breach is not cured within ninety (90) days after written notice thereof is received by the breaching party.
2.3. Provided that Licensee has paid all fees due under this Agreement and is not in breach of this Agreement, Licensee may terminate this license at any time by providing Embedthis written notice stating the effective date of the termination and immediately ceasing to ship Integrated Products containing the Software. If for any reason this Agreement is terminated by either party, Licensee is not entitled to a refund of the whole or any part of the fees paid. In the event of such termination, Licensee's right to use Integrated Products that were manufactured prior to termination is not affected.
Price and Payment
3.1. Licensee shall pay in full the License and service fees specified for this Agreement.
3.2. This Agreement constitutes the entire agreement between the parties and no additional purchase order or invoice terms or conditions shall be binding on either party. Payment terms will be net 30 days. All payment shall be made without any deduction and shall be exclusive of all taxes, duties and wire transfer fees. The rights granted in in this Agreement are contingent on the receipt in full by Embedthis of all payments due from Licensee.
4.1. Neither party may assign or otherwise transfer any of the rights or obligations arising out of this Agreement except to transfer this Agreement to any successor in connection with any transfer of all or substantially all of its business or assets or to any party that acquires voting control in a merger, acquisition or reorganization.
Copyright and Ownership
5.1. The Software is owned by Embedthis and is protected by international copyright, trademark and any other applicable laws. Licensee must comply with the terms of the copyright notice in the Software and must never remove any notice or product identification from the Software or the accompanying documentation. Licensee acknowledges that the copyright, patent, trade secret and all other intellectual property rights in the Software shall remain the exclusive property of Embedthis. Licensee also acknowledges that Embedthis owns the Embedthis, Appweb and Embedthis GoAhead trademarks and logos.
5.2. All right and title to modifications made solely by Licensee to the Software and the right and title to other software that is included by Licensee in an Integrated Product, shall remain the property of Licensee or other third parties.
6.1. The Software provided under this License Agreement is commercial computer software developed exclusively at private expense, and in all respects is proprietary data belonging solely to Embedthis. Embedthis warrants that to the best of its knowledge, the Software does not infringe the proprietary rights of any third party.
6.2. The Software does not contain code licensed under the GNU Public License (GPL) or similar copy-left license that would adversely impact Licensee's full exercise of the rights granted to them by this Agreement. Where some code in the Software has been licensed to Embedthis from other parties, Embedthis has rights to such code in the Software, sufficient to provide Licensee with the rights granted by this Agreement. Third-party licenses are specified in the Software's LICENSE.md file included with the Software.
6.3. If a lawsuit brought against Licensee finds that the Software infringes a United States patent, trade secret or copyright in a final determination, Embedthis shall correct the Software and provide Licensee with a non-infringing update of the Software provided that Embedthis is given prompt written notice of such infringement claim, all information in Licensee's possession related to such claim, and the option to participate fully in the defense against such claim.
Warranties and Limitations
7.1. The initial delivery of the Software will conform in all material respects to the Software documentation. Embedthis does not warrant that the Software will be free of errors or bugs.
7.2. If during the thirty-day period after the Effective Date (Warranty Period), Licensee notifies Embedthis of any defect or fault in the Software, the consequence of which causes the Software to materially fail to conform to the Software Documentation or this Agreement, Embedthis shall, at its option, repair or replace the Software. In the event that neither of these options is commercially feasible, then Embedthis shall in lieu of said remedies refund the relevant amounts paid for the failed Software.
7.3. No Other Warranties: Embedthis DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED TO THE Software, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS Agreement. The Software, and any accompanying written materials, are supplied "AS IS", without warranty of any kind. Embedthis does not warrant, guarantee or make any representations regarding the use of or the results of the use of the Software or as to its correctness, accuracy, reliability, currentness or otherwise. Licensee assumes the entire risk as to the results and performance of the Software. Where legislation does not permit such exclusion of liability, Embedthis's liability is limited to correction of defects in the Software.
7.4. Limitation of Liability: Except in case of intentional misconduct, gross negligence or breach of this Agreement, in no event shall Either party be liable to the other party for any damages, whether in contract or tort, including but not limited to damages for loss of business profits, business interruption, direct, consequential, special, exemplary, incidental and indirect damages arising out of or in connection with this Agreement or the use, results of use or the inability to use the Software, even if either party has been advised by the other party of the possibility of such damages. In any event, either party's entire liability under any provision of this Agreement shall be limited 100% of the Software License Fee.
8.1. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such a provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the balance of the Agreement shall be enforceable in accordance with its terms.
8.2. If Embedthis and its successors cease to operate in the ordinary course of business, Licensee's rights granted in Section 2, including the ability to create and sell Integrated Products, shall continue unaffected.
Agreement and Law
9.1. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service, or via email with evidence of delivery.
9.2. This Agreement contains the entire agreement between Licensee and Embedthis and supersedes all prior agreements, negotiations or other communications between the parties relating to the Software. This Agreement may only be amended or modified by agreement in writing.
9.3. This Agreement will be governed by the laws of the State of Washington, USA and the parties submit to the non-exclusive jurisdiction of the courts of that state.