Embedthis Software License
This is a sample commercial license. Please contact Embedthis for a commercial 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's end-user product that incorporate(s) the Software in binary form only, together with other hardware or software of significant value-add.
- Maintenance means the optional Embedthis program that provides Licensee with Software updates and upgrades under this commercial license, for twelve (12) months if Licensee has purchased this option.
- Program Errors means one (1) or more reproducible, material deviations in the standard, unmodified Software from the applicable specifications in the Software documentation.
- Software means the specific Embedthis software version described in Appendix B and the commercial invoice for the Agreement, including source code, headers, documentation and data files. It shall include maintenance updates and upgrades to the software that have been supplied by Embedthis to Licensee, only if Licensee has purchased the maintenance option.
- Support means the optional Embedthis program that provides Licensee with support services for the Software for twelve (12) months if Licensee has purchased this option.
License to Use
1.1. 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 Integrated Products containing the Software in binary form only, including the ability to provide remote access to Integrated Products via cloud services, and
c. Distribute the Software in source code form to Licensee contract manufacturers for the sole purpose of creating Integrated Products for the Licensee. This does not include the right to sublicense the Software, nor does it permit contract manufacturers to modify the Software or to distribute or sell the Software except in binary form when part of the licensed Integrated Product and sold directly to the Licensee.
d. If Licensee has purchased the sublicense binary option, Licensee customers may use, distribute, market and sell the Software in binary form only as part of licensed Integrated Product. This does not grant Licensee customers the right to create new Integrated Products or otherwise distribute, market or sell the Software.
e. If Licensee has purchased the sublicense source option, Licensee customers may use, modify and compile the Software as part of licensed Integrated Product. This does not grant Licensee customers the right to create new Integrated Products or otherwise distribute, market or sell the Software.
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 and distribute Integrated Products that were manufactured prior to termination is not affected.
Price and Payment
3.1. Licensee shall pay License and service fees specified in the commercial invoice for this Agreement. The Support and Maintenance prices are for the initial year and changes may be revised by Embedthis for future years.
3.2. Licensee may elect to renew the Software Maintenance each year on the anniversary of this Agreement by paying the Maintenance Fee in order to receive updates and upgrades for an additional twelve (12) months. If Licensee chooses not to renew maintenance, Licensee may not apply any updates, upgrades or patches released by Embedthis including those that are available under the GPL license. If Licensee chooses to renew maintenance after a lapse in coverage, Licensee may renew after payment of the current year as well as the previous year.
3.3. Licensee may elect to renew the Support services each year on the anniversary of this Agreement by paying the Support Fee in order to receive support for an additional twelve (12) months.
3.4. 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. Late payments shall incur a finance charge at the rate of 1.5% of the outstanding balance per month or part thereof, or the maximum rate, not more than 1.5% per month that is permitted by law.
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 entity that acquires voting control of the party 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 contains no 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 ninety-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 fail to conform to the Software Documentation or this Agreement, Embedthis shall, at its option, promptly repair or replace the Software. In the event that neither of these options is commercially feasible, as determined by and agreed between the parties, 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. Embedthis (herein both a Discloser and Recipient) and Licensee (herein both a Discloser and Recipient) shall keep in strict confidence, and use only in furtherance of the objectives of this Agreement, all technical or commercial know-how, specifications, inventions, processes, and initiatives or other disclosures written or otherwise which are of a confidential nature and have been identified as such, or which a reasonable person would conclude to be confidential under the circumstances, and have been disclosed to the Recipient by the Discloser , and any other confidential information concerning the Discloser's business or its products which the Recipient may obtain. The Recipient shall restrict disclosure of such confidential material to such of its employees as need to know, the same for the purpose of discharging the Recipient's obligations to the Discloser, and shall ensure that such employees are subject to obligations of confidentiality corresponding to those which bind the Recipient.
8.2. Information shall not be deemed confidential and Recipient shall have no obligation with respect to any information to the extent that it can be proven by Recipient's written records that said information: (a) is already known to Recipient prior to receipt from or disclosure by Discloser, without obligation of confidentiality; (b) after receipt from Discloser becomes publicly known through no wrongful act of Recipient; (c) is rightfully received from a third party without similar restriction and without breach of this Agreement; (d) is independently developed by Recipient without reference to, or use of, Discloser's confidential information; (e) is furnished to a third party by Discloser without a similar restriction on the third party's rights; (f) is approved for release by written authorization of Discloser; or (g) is disclosed to the extent required to comply with a judicial order or applicable governmental regulation or statutory requirement, provided that Recipient provides Discloser with advance notice of the requirement and an opportunity to object to any disclosure.
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.
10.1. 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.
10.2. 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.
11.1. 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.
12.1. 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.