SMB3 for HMI License Agreement

THIS LICENSE AGREEMENT (“Agreement“) is entered into and made effective as of the License Start Date,   (“Effective Date“) by and between VISUALITY SYSTEMS LTD, an Israeli corporation with offices at 3 HaTamar St., Yokneam Ilit, Israel (“VS“) and The “Licensee“, and may hereinafter be referred to collectively as the “Parties” or each individually as a “Party“.

Background

A. VS is the owner of certain proprietary technologies, products, know-how and expertise in the field of SMB/CIFS and

B. Licensee and VS (the “Parties“) desire that VS provide certain of its resources to Licensee, through a grant to Licensee of access to and use the VS Licensed Technologies, all as provided for in this Agreement.

In consideration of the mutual promises contained in this Agreement, the sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

1. Definitions 

For the purpose of this Agreement, the following capitalized terms shall have the meanings set forth below:

“Deliverables” means those VS’ computer software, and any Documentation.

“Documentation” means the operating instructions and user, installation, set-up, configuration, training, and support manuals for a computer software, as well as other similar items that explain the capabilities and operation of such software, and regardless of the storage medium. 

“Intellectual Property Rights” means any and all rights, titles and interests in and to any and all trade secrets, patents, copyrights, service marks and service names, trademarks and trade names, trade dress, designs, know-how, utility models, databases, topography and semiconductor mask works, internet domains, and other intellectual property (such as, but not limited to, software, inventions, improvements, algorithms, formulas, processes, discoveries, conceptions, ideas, techniques, products, specifications, methods, drawings, diagrams, models, data and data analysis) anywhere in the world, whether registered or unregistered, and including all applications, registrations, renewals, extensions, continuations, divisions or reissues thereof; as well as any and all moral rights, rights of privacy, publicity and similar rights of any kind under any laws of any country.

“Laws” means any statutes, codes, rules, regulations, ordinances, orders, decrees or other pronouncements of any governmental, administrative or judicial authority having the effect of law.

“VS License” shall mean the license to be granted by VS to Licensee hereunder to use the Deliverables.

2. The VS Licenses Granted

2.1 With effect as of the effective date, VS hereby grants Licensee and its Affiliates with a worldwide, non-transferable, non-exclusive license (subject to compliance with this agreement), under VS’s Intellectual Property Rights, to install the Deliverables 

2.2 Licensee and its subsidiaries’ right to install the Deliverables  as provided in Section 2.1 above is subject to the condition that such installation is solely limited to the number of units paid for in accordance to section 3 .

2.3 Subject to the provisions of this Section 2, Licensee will not reverse engineer the VS Licensed Technology without VS’ express written consent other than in connection with support and maintenance as part of its ongoing commercial activities and only for such purpose.

3. Consideration

3.1 In consideration for the Deliverables, the Licensee shall pay, within thirty (30) days fromLicense start date, VS the License fees according to the purchasing agreement  (“License Fee“):

3.2 All the amounts that are stated in this agreement shall be paid in the currency stated in the purchasing agreement and are inclusive of any applicable taxes and similar charges.

3.3 Licensee shall have a period of fourteen (14) days from the receipt of the Deliverables to test and ensure that they meet your requirements.. Should the Licensee choose to cancel the order for any reason within the fourteen (14) day trial period, Visuality Systems shall cancel the order without imposing any fees.

4. Ownership

4.1 VS shall be the sole and exclusive owner of all Intellectual Property Rights in and to the Deliverables and the VS Licensed Technology without a connection to this agreement and the execution thereof.

4.2 Any Intellectual Property Rights not expressly granted under this Agreement are hereby reserved. 

4.3 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, (OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE).

5. Limitation of Liability

EXCEPT IN CONNECTION WITH GROSS NEGLIGENCE AND WILLFUL MISCONDUCT AND/OR ANY OF ITS REPRESENTATIONS OR INDEMNIFICATION OBLIGATIONS, THE CUMULATIVE LIABILITY OF THE PARTIES FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED THE TOTAL OF ALL AMOUNTS PAID TO VS BY LICENSEE WITHIN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.  IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY AND INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, OR THE LIKE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES.  THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, VOID OR UNENFORCEABLE.  THE LIMITED WARRANTY, LIMITED REMEDIES, WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN VS AND LICENSEE AND VS WOULD NOT PROVIDE AND LICENSEE WOULD NOT ACCEPT THE PRODUCTS WITHOUT SUCH LIMITATIONS AND EXCLUSIONS.THE PROVISIONS OF THIS ARTICLE 5 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN VS AND LICENSEE AND ARE AN INTRINSIC PART OF THE BARGAIN BETWEEN THE PARTIES. THE FEES PROVIDED FOR IN THIS AGREEMENT REFLECT THIS ALLOCATION OF RISKS AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

6. Confidentiality

6.1 Each Party receiving Confidential Information (the “Recipient“) shall keep in strict confidence and trust, shall safeguard (by using at least the same level of care as Recipient uses to protect its own confidential and proprietary information of a similar nature, but in no event less than a reasonable level of care), and shall not disclose to any person or entity (except its and its Affiliates’ employees and permitted personnel hereunder that are bound by written agreements at least as restrictive and protective of the Discloser as in this Agreement), nor use for the benefit of any party other than the other Party (the “Discloser“), any Confidential Information belonging to the Discloser or its Affiliates, other than with the prior express written consent of the Discloser.  All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the Discloser (or its licensors).  “Confidential Information” means information or material, in any form or media, identified in writing as confidential and/or proprietary by the Discloser, that relates to the Discloser, its business, assets, financial condition, activities, documents, specifications, designs, processes, formulations, compounds, models, equipment, algorithms, devices, documents, plans, printed or electronic circuitry layouts, device manufacturing layouts, software, technology, products, plans and projections, customers, suppliers, partners, and other third parties with whom the Discloser has agreed to hold information or materials of such party in confidence and shall include, without limitation, information, whether or not marked or designated as confidential. Each Recipient shall return (or, if requested by the Discloser, permanently delete and certify such deletion in writing) all Confidential Information of the Discloser that is within the Recipient’s possession or control, promptly upon a written request from the Discloser. It is hereby agreed that: (a) the Deliverables shall not be deemed the Confidential Information of VS; and (b) with respect to the Deliverables, which are made by (or on behalf of) Licensee (or by VS in connection with this Agreement), shall be deemed the Confidential Information of Licensee. 

6.2 In the event that a Recipient is required to disclose Confidential Information of the Discloser pursuant to any law, regulation, or governmental or judicial order, the Recipient shall promptly notify the Discloser of such law, regulation or order and reasonably cooperate with the Discloser in opposing such disclosure (at Discloser’s  expense) or obtaining such other protective measures. In any event, any disclosure made pursuant to this Section 6.2 shall be made solely to the extent required by such law, regulation or order (as the case may be). 

6.3 Each Party recognizes and acknowledges that in the event of a breach or threatened breach of this Section (Confidentiality) by the other Party, the non-breaching Party may suffer irreparable harm or damage and will, therefore, be entitled to seek injunctive relief and specific performance to enforce the obligations under this Section (without the need to post a bond), without derogating from its rights and remedies under this Agreement, at law or in equity.

6.4 Each Party’s obligation of confidentiality hereunder shall be in effect for a period of 5 years with respect to a given item of Confidential Information.

7. Dispute Resolution

7.1 Each of the Parties hereto hereby agrees to use reasonable efforts to resolve all disputes arising under or in connection with this Agreement, promptly, equitably and in good faith.

7.2 In the event that a dispute among the Parties hereto cannot be amicably resolved after reasonable efforts within thirty (30) days, the dispute shall be referred to the chief executive officers (or other senior executives) of each of the Parties hereto. 

7.3 If a dispute is not resolved within the additional thirty (30) days, the dispute shall be resolved in the competent court in London, England, and each of the parties hereby submits irrevocably to the jurisdiction of such court. 

7.4 During the period when a dispute is being resolved, the parties hereto, shall in all other respects and to the fullest extent possible continue their implementation of this Agreement. 

8. General

8.1 Relationship between the Parties. In all matters relating to this Agreement, VS and Licensee shall act as independent contractors. Neither party will represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of the other party, or to represent the other party as agent, employee or in any other capacity.

8.2 Governing Law. This Agreement shall be governed by the laws of United Kingdom. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. 

8.3 Notices. Any notices hereunder shall be in writing and sent to the other Party at its e-mail address 

8.4 Entire Agreement and Amendment. All headings herein are for ease of reference only and shall not be used to interpret this Agreement. This Agreement constitutes the entire understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all previous and contemporaneous oral and written communications, agreements and understandings with respect to such subject matter. This Agreement may only be amended by a writing duly signed by both Parties. 

8.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced. 

8.6 Waiver. No failure or delay on the part of any Party hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Any waiver granted hereunder must be in writing, signed by the waiving Party, and shall be valid only in the specific instance in which given.