THIS LICENSE AGREEMENT (this "Agreement"), is entered into as of March 24, 2018 (the "Effective Date"), by and between Adaware Software Canada Inc. ("Licensor"), and (“Licensee”). (Licensor and Licensee are each a "Party" and, collectively, the "Parties".)
WHEREAS, Licensor owns and/or has licensed the right, title and interest to the Licensed Software (as defined below);
WHEREAS, Licensor wishes to grant, and Licensee wishes to accept, a license to use the Licensed Software to Licensee in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Definitions. Capitalized terms set out in the preamble shall have the definitions set out therein. The following terms shall have the meanings attributable to them below:
1.1. “Confidential Information” means non-public information of a Party that is identified as or would be reasonably understood to be confidential and proprietary, including, without limitation, information regarding a Party’s business plans, business models, business methodologies, business strategies, marketing plans, information system architecture, information system design, information systems integration methodologies, management consulting methodologies, financial information, customer information, supplier information, product offerings, service offerings, product concepts, pricing policies, personnel information, source code and other intellectual property (and all tangible and intangible embodiments thereof).
1.2. “Discloser” means a Party disclosing Confidential Information to the other Party.
1.3. “Documentation” means all user manuals, technical documentation, coding information and specifications for the Licensed Software.
1.4. “End-User” means a third party to whom Licensee sublicenses use of the Licensed Software pursuant to an end-user license agreement, which shall be consistent with the terms of this Agreement.
1.5. “Executable File” means a file that is used to perform various functions or operations on a computer.
1.6. “Licensed Software” means any and all software applications, systems and platforms used to manage, operate or administer an installer platform, including without limitation the wrapped executable file as defined in section 1.11.
1.7. “Modifications” means any and all error corrections, bug fixes, updates, upgrades, improvements, enhancements, customizations or other changes to the Licensed Software, including but not limited to changes to its functionality, features, capabilities and “look and feel.”
1.8. “Recipient” means a Party receiving Confidential Information from the other Party.
1.9. “Term” means from the Effective Date until the Agreement is terminated as per Section 5.
1.10. “Territory” means the United States of America, including its territories and possessions.
1.11. “Wrapped Executable File” means the executable file provided by Licensor to Licensee, which is wrapped with Licensor’s installer platform, featuring Licensor’s designs and Licensee’s logo(s).
2. Software License
2.1. License Grant. Subject to the terms and conditions contained in this Agreement, Licensor grants to Licensee a license to use the Licensed Software, reproduce the Wrapped Executable File provided by Licensor to Licensee, modify the file name of the Wrapped Executable File, and distribute the Wrapped Executable File for the duration of the Term.
2.1.1. Licensor grants Licensee non-exclusive use of its Licensed Software and without any prohibition on Licensee from using any other installer platforms.
2.1.2. The license set out in this Section 2 is on an “AS-IS” BASIS, shall be mutually non-exclusive throughout the Territory, and shall include all Modifications to the Licensed Software that Licensor or Licensee (or either’s agents, employees, contractors or designees) may create.
2.2. Conditions to Grant of License. The license grant in section 2.1 is expressly conditioned on the Licensee warranting that it shall not:
2.2.1. Permit an End-User to disclose, permit access to, or transfer to any third party, any portion of the Licensed Software;
2.2.2. Permit an End-User or other third party to reverse engineer, decompile or disassemble the Licensed Software;
2.2.3. Take any action that will harm or jeopardize the functioning of the Licensed Software, including, without limitation, injecting any malware, virus, etc.;
2.2.4. Launch any software that was not reviewed and approved by Licensor at its option, but not obligation, or is against Licensor’s Acceptable Use Policy (which is attached hereto as Exhibit A); or
2.2.5. Export the Licensed Software in violation of any U.S. Department of Commerce export administration regulations or other laws or regulations.
2.3. Purpose and Use of the Licensed Software. The Licensed Software is an installer platform that Licensor anticipates may provide the following services and benefits to Licensee:
2.3.1. wrap Licensee’s executable file;
2.3.2. serve to the End-User bundle offers or ads in the Licensed Software;
2.3.3. report campaign metrics (e.g., offer installs, revenue, etc.) to the Licensee;
2.3.4. create custom designs to the installer (both for the installer itself and the offers/ads it serves); and
2.3.5. optimize the Licensee’s campaigns and assist in its ability to generate more revenue.
2.4. Limitations on the Obligations of Licensor. Licensee understands and acknowledges that, notwithstanding any other provision of this Agreement, and notwithstanding that Licensor may from time to time voluntarily take any of the following actions to assist Licensee, LICENSOR IS UNDER NO OBLIGATION UNDER THIS AGREEMENT OR OTHERWISE TO TAKE ANY OF THE FOLLOWING ACTIONS:
2.4.1. Provide Modifications to the Licensed Software; or
2.4.2. Provide any service related to the Licensed Software, including, but not limited to installation, maintenance or support via telephone, e-mail, helpdesk, onsite visit or otherwise.
3.1. Except for the rights expressly granted in this Agreement, this Agreement does not transfer to Licensee any right, title, or interest in or to the Licensed Software. Licensee acknowledges that Licensor retains sole and exclusive title to all portions of the Licensed Software, including without limitation all Modifications, and hereby assigns to Licensor all right, title, and interest in and to any Modifications to the Licensed Software made by or on behalf of Licensee.
3.2. Licensee acknowledges and agrees that it will do nothing inconsistent with Licensor’s ownership of the Licensed Software, and it shall not challenge the title or any rights of Licensor in and to the Licensed Software and their associated goodwill.
3.3. Promptly upon learning of any unauthorized possession or use of or access to the Licensed Software, Licensee will notify Licensor and will shall cooperate fully in any litigation or other proceedings undertaken to protect the rights of Licensor or to prevent recurrence.
4. License Fee.
4.1. Payment. In consideration of the Licensee’s full compliance with all the terms and conditions of this Agreement, Licensor will not charge any fee for the grant of license under this Agreement.
5.1. Either Party may terminate the Agreement (i) with or without cause, upon two (2) business days written notice and (ii) immediately for a material breach of this Agreement.
5.2. Termination and Winding-Down Period. The rights and interests of Licensee in and to the Licensed Software granted pursuant to this Agreement shall be revoked and automatically shall terminate
upon the termination of this Agreement, except that, solely to enable an orderly transition or winding-down of such use, Licensee shall be permitted to continue use of the Licensed Software for not longer than ten (10) calendar days after termination for any reason, subject to the payment by Licensee of a License Fee in the amount of $20,000.
5.3. Return of Confidential Information. Each Party shall return to the other all Confidential Information within thirty (30) days after the termination of the Agreement. In addition, each Party will assist the other in the orderly termination of this Agreement, and the transfer of all aspects hereof, tangible and intangible, as may be necessary for the orderly, non-disrupted business continuation of each Party. Without limiting the generality of the foregoing, Licensee shall be obligated promptly and completely to destroy, and to certify in writing the complete destruction of, or return the Licensed Software.
6.1. Each Party, each in its sole discretion, may disclose or otherwise make available certain Confidential Information to the other Party on the terms and subject to the conditions of this Agreement.
6.2. During the term of this Agreement and for a period of five (5) years following the expiration or earlier termination hereof, Recipient shall (i) maintain in confidence and prevent the unauthorized use and disclosure of Confidential Information of Discloser, and (ii) exercise the same degree of care as it uses for its own confidential information, but no less than reasonable care. Recipient shall disclose Confidential Information only to those of its employees, agents, advisors and contractors as reasonably necessary to facilitate the purposes of this Agreement, provided that such persons are required to maintain in confidence and not use Confidential Information except as permitted by this Agreement.
6.3. Notwithstanding the foregoing, Confidential Information shall not include information that is: (i) public knowledge at the time of such disclosure by Discloser to Recipient, or that subsequently becomes public knowledge, not as a result of wrongful acts attributable to Recipient; (ii) rightfully known by Recipient prior to the date of disclosure by Discloser; (iii) disclosed to Recipient on an unrestricted basis from a third party not under a duty of confidentiality to Discloser; or (iv) independently developed by employees, contractors or agents of Recipient without reference to or use of Confidential Information of Discloser.
6.4. Recipient may disclose Confidential Information to the extent required by applicable law or regulation, provided that Recipient shall give Discloser prompt written notice (if lawful) and sufficient opportunity to seek a protective order or other appropriate remedy such disclosure. If a protective order or other remedy is not obtained, Recipient shall furnish only that portion of the Confidential Information which is legally required and shall cooperate in any action reasonably taken, at Discloser’s expense, to seek reliable assurance that confidential treatment shall be accorded such Confidential Information. Notwithstanding the above, Recipient is permitted to disclose Confidential Information of Discloser to its auditors, to law enforcement and regulatory authorities without notice to or consent by Discloser.
6.5. Promptly upon obtaining knowledge thereof, Recipient shall disclose to Discloser any attempt to improperly use or disclose any Confidential Information of Discloser.
7. Mutual Representations and Warranties.
7.1. Organization. Licensor and Licensee each represents and warrants that it is duly organized, validly existing and in good standing pursuant to applicable laws under which it is organized, and is qualified to do business in all jurisdictions as may be required for the conduct of its business activities hereunder.
7.2. Power and Authority. Licensor and Licensee each represents and warrants that it has full power and lawful authority (i) to own and operate its assets, properties and business; (ii) to carry on its business as presently conducted; and (iii) to enter into and perform this Agreement. The persons executing this Agreement have full authority to bind it to the terms and conditions hereof.
7.3. Authorizations; No Violations. Licensor and Licensee each represents and warrants that its execution and delivery of this Agreement, and performance hereof: (i) are within its organizational powers; (ii) have been duly authorized by all necessary organizational action, if required by its governing organizational documents; (iii) do not and will not conflict with or constitute a breach or violation of its governing organizational documents, and (iv) do not and will not conflict with or constitute a breach or violation of any material agreement, indenture, deed of trust, lease, mortgage, loan agreement or any other material instrument or undertaking to which such Party is a party.
8.1. Licensee covenants and agrees to defend, indemnify and hold harmless Licensor and its respective officers, directors, employees, agents and permitted assigns (each, an “Licensee Indemnified Party”) from and against any and all losses, damages or injuries, including without limitation reasonable attorneys’ fees (“Losses”) to the extent such Losses arise from (i) Licensee’s breach of a representation, warranty, condition to grant of license, or any other provision contained in this Agreement; (ii) Licensee’s use of the Licensed Software, or (iii) claims by third parties relating to Licensee’s use of the Licensed Software.
8.2. Any damages to the assets or business of Licensor caused by a failure of the Licensee to defend shall be included in the damages for which the Licensee shall be obligated to indemnify Licensor. The Licensee shall not compromise or settle a claim against the Licensor without Licensor’s consent, which shall not be unreasonably withheld or delayed.
9. 9. Limitations on Liability. LICENSOR IS PROVIDING THE LICENSED SOFTWARE ON AN “AS IS” BASIS AND OFFERS NO WARRANTY OF ANY KIND AS TO ITS FUNCTION, USEABILITY, OR UTILITY, INCLUDING, WITHOUT LIMITATION, ANY FAILURES RELATING TO INSTALLER CRASHES, ANTIVIRUS FLAGGING, INFRASTRUCTURE ISSUES, ETC.
LICENSOR SHALL BE NOT BE LIABLE TO LICENSEE (OR ANY THIRD PARTY), WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT ANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE WRONGFUL DEATH OR INJURY OF ANY PERSON.
ALL SERVICES PROVIDED BY LICENSOR ARE PROVIDED ON AN "AS IS" "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, LICENSOR MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. LICENSOR IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
10.1. Notices. All notices, demands or other communications required or permitted to be given hereunder shall be in writing, and any and all such items shall be deemed to have been duly delivered upon personal delivery; or as of the immediately following business day after deposit with a commercially recognized overnight courier service by which receipt may be confirmed, charges prepaid, addressed to the last address provided by a Party.
Any Party may change its notice information by written notice given to the other Party.
10.2. Assignment; Binding Effect. The rights and obligations of Licensee under this Agreement are not assignable either voluntarily or by operation of law, without prior written consent from Licensor. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
10.3. Governing Law/Venue. This Agreement and any disputes arising hereunder, shall be governed by, interpreted, construed and enforced in all respects in accordance with the laws of Canada, without giving effect to any choice of laws principles that would require the application of the laws of different Country or State. The courts within Canada shall have exclusive jurisdiction to adjudicate any dispute arising in connection with this Agreement or any disclosure by either party of its Confidential Information to the other. Each party to this Agreement, by its signature below, consents to jurisdiction of the courts within Canada regarding any claim or dispute arising in connection with this Agreement.
10.4. Survival. All provisions of this Agreement which by their nature extend beyond the termination of this Agreement shall survive the termination of this Agreement.
10.5. Severability. The provisions of this Agreement shall be deemed severable, and if any provision of this Agreement shall be held illegal, void or invalid by an arbitrator or court of competent jurisdiction (i) such provision shall be deemed to be restated to reflect as nearly as possible to the original intentions of the Parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
10.6. Waiver. No course of dealing and no failure by a Party to enforce any provision of or to exercise any right under this Agreement shall be construed as a waiver of such provision or right or affect the validity of this Agreement or limit, prevent or impair the right of any Party subsequently to enforce such provision or exercise such right. The waiver by a Party of any breach or default of this Agreement by the other Party shall be in writing, and will not operate or be construed as a waiver of any subsequent or other breach or default.
10.7. Relationship of the Parties. The Parties to this Agreement are independent contractors and are not authorized to bind the other Party in any respect.
10.8. No Third Party Beneficiaries. This Agreement is made solely for the benefit of the Parties and not for the benefit of any third parties.
10.9. Construction. The language of all parts of this Agreement will in all cases be construed as a whole, according to its fair meaning and not strictly for or against any of the Parties. The headings, captions, headers, footers and version numbers contained in this Agreement have been inserted solely for convenience of reference and shall neither constitute a part of this Agreement nor affect its meaning, interpretation or effect. Unless expressly noted to the contrary, the provisions of any schedule, exhibit or addendum to this Agreement shall be construed to conform to the provisions of this Agreement to the maximum extent reasonably possible. In the event of a conflict, unless expressly stated to the contrary, the provisions of this Agreement shall control.
10.10. Counterparts. This Agreement may be executed and then delivered via facsimile transmission, via the sending of PDF or other copies thereof via email and in one or more counterparts, each of which shall be an original but all of which taken together shall constitute one and the same Agreement.
10.11. Entire Agreement. This Agreement, including the exhibits, schedules and addenda, is intended as the complete, final and exclusive statement of the terms of the agreement between the Parties regarding the subject matter hereof and supersedes any and all other prior or contemporaneous agreements or understandings, whether written or oral, between them relating to the subject matter hereof. This Agreement may be amended only through a separate writing executed by duly authorized representatives of each Party.