Part B - Runtime
License Terms
Document
Version: rtlt2_02
B1.1 Background
(a) QSS Software &
Development Cycle. QSS has
developed and licenses a general purpose modular real-time operating system
known as the QNX NeutrinoÒ RTOS
(“Neutrino RTOS”). Its microkernel
architecture provides an extensible operating system framework, which is based
upon the foundational components of the Core OS technology. Additional OS
services are implemented by plugging in modules from other elements of the
Neutrino RTOS (e.g., Networking, File Systems, GUI, Web Client (browsers),
etc.). QSS offers bundled software tools, known as QNX Momentics development
suites, for developers to use to create Neutrino RTOS-based devices (“Target
Systems”, as further defined below). These development suites include a variety
of development tools, including compilers, debuggers, libraries, headers,
utilities, sample source code, etc. See
the QNX Development Suite License Guide at http://licensing.qnx.com/published/eula/index (“License Guide”) for more details of
what’s included and how it's provided. ABC can also contact QSS for a hardcopy.
Embedded
system developers typically build Target Systems using the Neutrino RTOS and
QNX Momentics development suites by:
(i) developing the requisite code to make the Neutrino RTOS operational on the customer’s target hardware (i.e., a board support package comprising IPL, start-up and drivers – various parts of which may be available from QSS in binary form for supported processors and peripherals or, alternatively, which may be developed from scratch or derived from QSS-supplied sample source code); and
(ii) integrating Neutrino RTOS object code programs,
libraries and utilities with files the developer generates using QNX Momentics
development suite tools in order to define the operating system’s operational
constraints, to tailor its functionality and, if equipped with a GUI, to tailor
its appearance, in order to meet the requirements of the intended device.
Over the course
of a Target System’s life cycle, developers typically upgrade hardware
platforms (requiring a repetition of step (a) above) and/or software stacks
(e.g., to adopt new releases of the Neutrino RTOS, third party software and/or
custom components) in order to enhance the device’s performance and
functionality.
(b) Intended Scope of Agreement.
(i) This Agreement is intended to provide OEM with a framework within which OEM can distribute copies of certain runtime files as an integral part of OEM's Target System.
(ii) This Agreement does not
provide any development rights, support services or engineering services, which
are provided for in different agreements; contact QSS for details. This Agreement supplements and not supercedes
such agreements.
B1.2 General Definitions. In this Agreement:
(a) Affiliate” means any corporation which, directly or indirectly, controls or is controlled by or is under common control with a party, where “control” means majority ownership of shares or other securities that are entitled to vote to elect directors. Any such corporation shall be deemed to be an Affiliate only as long as such control exists.
(b) “Agreement” means Runtime Quotation (or “Part A”), this document entitled Part B - Runtime License Terms and any terms expressly referenced by this Agreement;
(c) "Agreement Year” means 12 months ending on an anniversary of the Effective Date;
(d) “Commercially Released” means formally released, generally
available, and fully supported by QSS.
It does not include “experimental”, “engineering”, “beta”, or
“unsupported” components.
(e) “Derivative Work” means
any work made by or for OEM that is a revision, modification, translation,
expansion, extension, collection, condensation or abridgement of any software
provided by QSS in source code form pursuant to the QNX EULA. It does not
include any Runtime Configuration, or combination thereof, provided by QSS in
Object Code form.
(f) “Documentation” means
any developer documentation, read-me files and release notes that are provided
in or for Commercially Released Software;
(g) “Effective Date” means
the date that OEM executes or electronically accepts this Agreement, as the
case may be;
(h) “Error” means when the
Runtime Configuration does not behave the way the associated Documentation says
it should and the problem can be reproduced using the Runtime Configuration on
a Reference Target. It does not include problems resulting from modifications
to, or incorrect or improper use of, the Runtime Configuration.
(i) “License Sticker”
means an original copy of a QSS issued and serialized document (in the form of
a sticker, printed certificate, electronic authentication or otherwise) which
authenticates the Software;
(j) “License Key” means a
unique serial number provided by QSS that allows an end user to access the
Software;
(k) “Object Code” means
computer-programming code substantially in binary form, and includes header
files of the type necessary for use or interoperation with other computer
programs. It is directly executable by
a computer after processing or linking, but without compilation or assembly.
(l) “OEM” means the entity, other than QSS, identified on a
Runtime Quotation;
(m) “QNX EULA” means the
version of QSS’s standard end user license agreement that accompanies or is
identified in the QNX development software used to create the Runtime
Configuration (copies of which are published at
http://licensing.qnx.com/published/eula/index).
(n) “QNX Software Systems” or “QSS” means: (1) QNX Software Systems Ltd. for customers within Canada (invoice addressed to Canadian address), or (2) QNX Software Systems, an Ontario partnership, for all other customers.
(o)
“Reference Target”
means, in respect of a particular Runtime Configuration release, a hardware
platform on which QSS commercially supports the Commercially Released Software
(contact support@qnx.com for a current list, also see
http://www.qnx.com/products/bsps/).
(p) “Runtime Quotation”
means a formal pricing quote for the distribution of runtimes issued by QSS
which includes a specific area for OEM to execute the document or which can be
accepted electronically through a click-through mechanism or the like;
(q) “Runtime Components”
means any software components in Object Code format that are intended to be
integrated into, and to be distributed as an integral part of, Target Systems –
as described in applicable Documentation.
Runtime Components are also
described in the QNX Neutrino Runtime Operating System Runtime Technologies
section of the applicable License Guide. It does not include any software
identified as experimental, beta or trial software.
(r) "Runtime Configuration"
or ”Software” means any Commercially Released Runtime Components (or any
subset thereof, which may be Target System specific) that make up the software
modules listed in the Runtime Quotation. It includes any Commercially Released
Updates that correspond to the specified Runtime Components to the extent that
OEM has been provided with or has subscribed to such Update rights. For section B2 and B3, it includes any of
the following that correspond to the specified Runtime Components: deliverables
provided to OEM pursuant to a QSS engineering services agreement that provides
a license under a Runtime License Agreement; Object Code versions of any
Derivative Works; any Solutions provided to OEM pursuant to a QNX Priority
Support Plan subscription or pursuant to Section B7.3 (Limited Warranty); and
any QNX-Specific Improvements (as defined in section B2.7(c)). Unless otherwise
indicated, each Runtime Configuration is specific for each Target System.
(i) “Type I Software”
means any Commercially Released Runtime Components other than Type II or Type
III Software. It typically includes QSS
proprietary code and may include some third party proprietary and open source
code elements.
(ii) “Type II Software”
means any Commercially Released Runtime Components identified as “Type II” or
“Collateral Code” in the applicable License Guide or Part A. Type II Software may be licensed to OEM
under alternative, or sublicensed to OEM under amended, license terms – as
identified or referenced by QSS in the applicable QNX EULA and/or associated
License Guide. It may include third party proprietary and open source code
elements.
(iii) “Type III Software”
means any Commercially Released Runtime Components identified as “Type III” or
“As Is Code” in the applicable License Guide or Part A Type III Software is
licensed, or sublicensed to OEM strictly on an “as is” basis, and may be licensed
to OEM under alternative, or sublicensed to OEM under amended, license terms –
as identified or referenced by QSS in the applicable QNX EULA and/or associated
License Guide. It may include third
party proprietary and open source code elements.
(s) “Solution” means an explanation, workaround or patch that
addresses an Error.
(t) “Target System” means a product fitting the Target
Description on the Runtime Quotation into which the Software has been wholly or
partially integrated, and each of which must: (i) significantly enhance the
function and value of the Software, and (ii) have substantially different
principal purposes than those of the Software;
(u) “Target System EULA”
means the end user license agreement that is used to license the Runtime
Configuration to Target System end users;
(v) “Update” means a new Commercially Released version of a
Runtime Component that provides error corrections, functional enhancements
and/or performance improvements. Updates are distinguished from earlier versions
of the Runtime Component by a change in the version number to the right of the
decimal point of the QNX Momentics development suite with which the new Runtime
Components are provided (i.e., from x.1 to x.2, or x.x.1 to x.x.2, or x.x.xA to
x.x.xB). Updates are deemed not to include any new feature that: (i) is offered
by QSS only in a separate royalty bearing Runtime Component, or as an
extra-cost option to a licensed Runtime Component, or (ii) was formerly offered
by QSS in a separate royalty bearing Runtime Component, but that is now bundled
into a single component that has a greater list price than the Runtime
Component that OEM wants to update.
(i) “Patch Release” means an Update that
provides Error corrections. Patch Releases are distinguished from earlier
versions of the Runtime Component by a change in the alpha character element of
the version number of the QNX Momentics development suite with which the new
Runtime Components are provided (i.e., from x.x.x to x.x.xA, or x.x.xA to
x.x.xB).
(w) Other capitalized terms
defined in any Part of this Agreement will have their indicated meaning
throughout this Agreement.
B2 License Rights
B2.1 Intentionally Blank
B2.2 Intentionally Blank
B2.3 Intentionally Blank
B2.4 License. Subject to the terms and conditions of this Agreement, including those specific to third party software (see section B2.6 – Third Party Software) and those relating to Target System EULAs (see section B3.6), QSS hereby grants to OEM for the term of this Agreement a non-exclusive, personal and non-transferable limited license to:
(a) reproduce, as an integral part
of a Target System, one copy of the Software for each License Sticker that OEM
has purchased from QSS or its local authorized QNX distributor for the purpose
of manufacturing Target Systems. A
separate License Sticker is required for each Target System manufactured;
(b) reproduce, as part of the
Target System software back-up media (if any) to be shipped with the Target
System, a second copy of the Software for each License Sticker that OEM has
purchased from QSS or its local authorized QNX distributor solely for use for
Target System back-up purposes (i.e., not for productive use, such as in
redundant systems);
(c) distribute copies of the
Software made under section B2.4(a-b) to end users as part of and only for use
in association with corresponding Target Systems under the terms and conditions
of a Target System EULA as contemplated by section B3.6(b), both: (1) directly;
and (2) indirectly by authorizing third parties to resell Target Systems and
associated License Stickers (“Distributors”) provided that OEM shall at all
times remain responsible to QSS for the full performance of any obligations,
and compliance with any restrictions, required by this Agreement; and
(d) reproduce as part of a
software update for existing Target Systems, one copy of a Software Update for
each corresponding Update licensed hereunder.
B2.5 Updates OEM shall be entitled to update the Software in Target
Systems, at no additional charge:
(a)
with Patch Releases, solely for the purpose of adopting and
disseminating Error corrections for new and existing Target Systems; and
(b) with
Updates, solely for use in new Target Systems and provided that OEM has
maintained a continuous subscription to QSS support services that entitle OEM
to receive and use Updates for each active QNX development seat used for Target
System development, integration testing, maintenance, support and enhancement.
B2.6 Intentionally blank.
B2.7 Third Party Software. Parts of the Runtime Components may contain third party code. Type I Software is licensed (or sublicensed) to OEM under the standard terms of this Agreement and may include additional license terms. Type II Software and Type III Software may be licensed to OEM under amended or alternative terms. Those terms, and any Software authorship attribution and like notices that QSS is obliged to provide to OEM, are identified or referenced by QSS in the applicable QNX EULA and/or associated License Guide. Unless expressly provided otherwise, all third party code is provided to OEM solely for use in association with the Neutrino RTOS.
B2.8 Ownership & Reservations.
(a) All Rights Reserved. All rights not expressly granted are
reserved to QSS and its licensors. QSS
and its licensors retain all right, title and interest in and to the Software,
including all Intellectual Property therein.
All copies, Solutions and Updates that are not separately licensed will
be considered part of the Software for the purpose of this Agreement and shall
remain the property of QSS and its suppliers.
(b) Intentionally Blank.
(c) Feedback. At OEM’s option, QSS would like to get
feedback about its Software - i.e., regarding its utility, reliability,
performance, user acceptance, and any features or functionality that OEM would
like to see in future versions. QSS would also like to hear about any problems
that OEM has encountered. In order to
incorporate suggested improvements, QSS requires and OEM hereby agrees to
assign and waive all right, title and interest (if any) in and to any
QSS-specific Improvements, including any associated Intellectual Property and
moral rights, to and on behalf of QSS. In this paragraph "QSS-specific
Improvements" means any work-arounds, error corrections, enhancements or
other suggestions or improvements to the Software that OEM provides to QSS.
B2.9 Valid Development License Required. All license rights granted in this Agreement are contingent upon OEM having valid commercial development system license(s).
B3 General License Limitations & Requirements.
B3.1 Use Restrictions. Unless expressly permitted by this Agreement, by applicable law, or by QSS in writing, OEM agrees not to:
(a) alter, remove, or cover any trademark, logo, proprietary or licensing notice(s) in or on any part of the Software , including in any "about" box, "flash" / "splash" screen or documentation;
(b) use unauthorised license keys;
(c) decompile, disassemble, decrypt, extract or otherwise attempt or assist others to reverse engineer any part of the Software, including circumventing any license key activation or evaluation period expiry mechanisms, except as necessary, when permitted by an applicable law, to correct defects or achieve inter-operability with complementary programs, for OEM’s purposes only, but only if QSS has refused to provide the necessary information or assistance;
(d) directly or indirectly, export, import or transmit the Software to any country in contravention of the laws of that country or the laws of Canada or the United States;
(e) use any part of the Runtime Configuration for any use other than in the Target System (including for development purposes); or
(f) update Target Systems with new Runtime Configuration versions or releases, except Updates that OEM is authorized to distribute hereunder.
B3.2 High Risk. Unless QSS has provided its express written consent for each Runtime Component in the Runtime Configuration, the Software may not be, and OEM will ensure that it is not, used in any application in which the failure of the Software could lead to death, personal injury or severe physical or property damage (collectively, “High-Risk Applications”), including but not limited to the operation of nuclear facilities, mass transit systems, aircraft navigation or aircraft communication systems, air traffic control, weapon systems and direct life support machines. QSS expressly disclaims any express or implied warranty or condition of fitness for High-Risk Applications.
B3.3 U.S. Government
Restricted Rights. The Software is provided under this Agreement to
non-DOD agencies of the US Government with Restricted Rights and the
Documentation with Limited Rights as provided by subparagraph (c) of FAR
52.227-19 ("Commercial Computer Software-Restricted Rights”, June 1987). The rights of DOD agencies of the U.S.
Government in the Software, Documentation, and related technical data are
governed by the restrictions set forth in the Technical Data Commercial Items
clause at DFARS 252.227-7015 (Nov. 1995) and DFARS Subpart 227.72 ("Rights
in Computer Software and Computer Software Documentation"). Contractor /
manufacturer is QNX Software Systems
B3.4 Distribution of Copies. OEM will ensure that any update or back-up
media copy of the Target System software that includes any part of the Runtime
Configuration will: (i) only be made available to authorized Contractors,
subcontractors and distributors pursuant to section B2.4, and to licensed
Target System end users; or (ii) have measures to ensure that such software
will only work on licensed Target Systems.
B3.5 Intentionally Blank
B 3.6 License Stickers & Target System EULA.
(a) Authentication. OEM must provide (and require its
Distributors to provide) appropriate License Stickers to authorized end users
of its Target System. If License Stickers are provided in the form of physical
stickers, OEM will affix at least one sticker (i.e. one sticker per licensed
node) to each Target System Manufactured pursuant to this Agreement and require
that these stickers not be removed by Distributors. Each License Sticker authenticates a copy of the Software as
having been created under this Agreement and authorizes use of that copy in the
Target System on one computer. A
separate License Sticker is required for each Runtime Configuration on each
Target System. License Stickers are
specific to particular Software releases and Target Systems.
(b) Target System EULA. All
Target Systems must be distributed with a “Target System End User License
Agreement” or “Target System EULA” governing the rights in the Software by the
Target System end user. The text for the Target System EULA will be provided by
QSS through http://licensing.qnx.com/published/rteula/index.html.
OEM will ensure that the Target System EULA is presented to the end user in a
manner that creates a valid, binding contract between QSS and the end user in
the jurisdiction in which it is presented. OEM will ensure that the Target
System EULA is appropriate to the intended vertical market and end user in the
end user’s jurisdiction. Without restricting the generality of the foregoing it
is contemplated that the Target System EULA may be presented as a
click-through, shrink-wrap or other standard form agreement. In some
jurisdictions it may be necessary for the EULA to be signed by the End User to
create a valid, binding contract.
(c) Restriction on License
Rights. OEM is not licensed to distribute the Software in any jurisdiction
in which it does not meet the requirements of section B3.6(b).
(d) Changes to Target System
EULA. On written notice, including by email, QSS may change the
substance or form of the Target System
EULA, or manner in which the Target
System EULA is presented by QSS. OEM will have 30 days to modify its practices
under (b) to comply with such changes
B3.7 Marking.
(a) Copyright. To the extent that end user documentation is distributed with the Target System and/or the Target System itself bears a copyright notice, then OEM will ensure that such documentation and/or Target System contain a copyright notice for the Runtime Configuration in favor of QSS, either generically as a licensor or substantively as follows: “© 1982-2002, QNX Software Systems All rights reserved.”
(b) QSS Trademarks. OEM will eliminate screen display references
to QSS trademarks in Derivative Works. Any display of QSS’ or its licensors’
trademarks, trade names, logos, or other words identifying the Software,
Documentation, related services or QSS’ or its licensors’ businesses
(“Trademarks”) will be for information purposes only, will be marked with the
symbol ™, and will clearly identify the owner of the Trademark displayed.
B3.8 Preservation. When sub-licensing to any agency, department
or unit of any government or quasi-government authority OEM will take all
actions and precautions consistent with applicable laws and regulations
specifically governing licensing to such entities to preserve and protect all
ownership and other rights of QSS and its licensors in the Software and
Documentation.
B3.9 Compliance with Laws. OEM will comply with all applicable laws,
rules and regulations and obtain all permits, licenses and authorizations or
certificates that may be required in connection with its activities pursuant to
this Agreement. This includes any laws, regulations, orders or other
restrictions on the export of the Software from Canada and the USA that may be
imposed from time to time by the Canadian or United States Governments. OEM will not import, export or re-export,
directly or indirectly, the Software or information pertaining thereto to any
country for which either such government or any agency thereof requires a
license or governmental approval at the time of import, export or re-export
without first obtaining such license or approval.
B3.10 Support. Issues
(a) No Support. Except for
Updates to which OEM is entitled, if any, QSS has no obligation under this
Agreement to provide maintenance, support, training or consulting services.
Such services are available from QSS but are subject to separate Agreements.
(b) OEM to Support Target
Systems. OEM alone will be responsible for all Target System development,
manufacturing, reproduction, assembly, marketing, distribution, licensing,
installation, training, maintenance, updating and support.
B4 – B6 Intentionally Blank.
B7. Payment Terms, Risk
Allocation and Sundry Items.
B7.1 Payment & Record Keeping.
(a) Prepayment & Pricing. OEM will prepay QSS for all copies of Runtime Configurations to be created for each Target System ("Manufactured") under this Agreement. Each prepaid order must reference the Runtime Configuration number and specify the intended Target System ("Order"). QSS will provide one License Sticker to OEM for each pre-paid copy to authenticate licensed copies. The amount due for each Order for each Configuration will be calculated by multiplying the desired number of whole or partial copies thereof to be Manufactured by the then-effective Unit Price. The Unit Price for each Configuration will be determined by reference to the price in the Runtime Quotation that corresponds to the actual number of that Configuration Ordered in the then-current Agreement Year to the date of the Order, including the amount of the Order. For greater certainty, pricing is on a per Configuration per Target System basis and OEM cannot aggregate Orders across different Target Systems to achieve better pricing. If a price is not specified in a Runtime Quotation or a Runtime Quotation is altered by OEM without QSS’ consent, then the price of each Configuration will be determined by QSS' then-current list price for all Software included in the Configuration.
(b) Payment Terms. If QSS generates an invoice in association
with an Order, then all amounts invoiced by QSS will be paid within 30 days of
receipt of QSS’ invoice. All unpaid
amounts on invoices will bear interest at a rate equal to fifteen percent (15%)
per annum or the highest rate permitted by law, whichever is lower, of the
outstanding payment from the date due until the date paid.
(c) Intentionally Blank.
(d) Payment - General. All payments made will be in the invoiced
currency, without deduction of any kind, except as required by applicable laws
(in which case OEM will obtain and provide to QSS evidence issued by the
relevant authority acknowledging their receipt of the deducted amount). All fees are exclusive of taxes. OEM will be
solely responsible for payment of all sales or equivalent tax consequences
which may flow from the delivery of Software and the performance of services
(if any) hereunder, and will pay all taxes (including sales, use, value-added
and similar taxes) payable with respect to payments made by OEM to QSS under
this Agreement, except for taxes based solely upon QSS’ income and legally
required withholding taxes (if any).
(e) Audits
& Reports. OEM will maintain
for a period of 3 years after the end of the year to which they relate accurate
records regarding all copying and distribution activities, and the payments due
to QSS, pursuant to this Agreement.
(i) Upon 15 days prior
notice, QSS may have an independent auditor of its choice audit such records to
verify royalty reports and/or review OEM’s compliance with this Agreement
during normal business hours (“Audit”); or
(ii) QSS may require that
OEM provide QSS with a written report of the number of copies of the Software
Manufactured by Runtime Configuration and
Target System (“Report”). The Report will be signed by an authorized
officer of OEM confirming the accuracy of the Report.
Audits
will not occur and Reports will not be requested more than once each year
unless discrepancies are discovered indicating an underpayment of more than ten
percent (10%) of the proper amount owed. Payment errors will be corrected
immediately by an adjustment payment, which will include interest on the overdue
amount in accordance with section B7.1(c). OEM will also reimburse QSS for its
reasonable out of pocket audit costs if the underpayment is more than 10% of
the proper amount owed.
B7.2 QSS IP Indemnity.
(a) Indemnity. QSS will
defend OEM and its Affiliates against any Infringement claims, and indemnify
and hold OEM and its Affiliates harmless from any Infringement damages finally
awarded, in any third party action against OEM or its Affiliates based on the
reproduction, use or distribution of Type I or Type II Software in accordance
with the terms of this Agreement, provided that OEM gives QSS prompt notice of,
as well as all authority, information, and assistance (at QSS' expense)
necessary or desirable to defend, such claims.
In this Section B7.2 “Infringement” means: (i) infringement of copyright
by the Type I or Type II Software; (ii) misappropriation of trade secrets by
QSS; or (iii) infringement by the Type I or Type II Software of any patent,
where such patent infringement is inevitable when reproducing, using or
distributing Core Software alone or in conjunction with equipment that is
essential for its use. Infringement
does not include any infringement or misappropriation of any kind caused by the
creation, reproduction, combination, use, distribution or sale of Derivative
Works, or any other modifications of the Software, made by or for OEM or its
Affiliates.
(b) Remedy. With respect to any finding of
Infringement, or any reasonable belief of QSS that Infringement may occur, QSS
will, at its sole expense and option: (i) procure for OEM and its Affiliates
the right to continue using the Type I or Type II Software; (ii) replace the
Type I or Type II Software with non-infringing software of comparable function;
(iii) modify the Type I or Type II Software to be non-infringing; or (iv) if
none of the foregoing alternatives is reasonably available to QSS, terminate
OEM’s and its Affiliates’ rights to the Software, but only to the extent
necessary to avoid the Infringement. OEM will have the right to terminate all
of its rights if OEM determines such partial termination renders OEM’s or its
Affiliates’ remaining rights ineffective.
Upon such full or partial termination, QSS will refund to OEM, pro-rata
to the extent of such termination, the royalties paid by OEM that are
associated with the terminated rights.
(c) Exclusive Remedy. This
Section B7.2 states OEM’s and its Affiliates’ exclusive remedy for infringement
of intellectual property rights by the Software.
B7.3 OEM Indemnity. OEM will indemnify and hold QSS harmless
from any damages finally awarded, and any costs and expenses (including
reasonable attorney’s fees) incurred, in any third-party action against QSS,
its Affiliates, or their distributors or suppliers, based on bodily injury,
property damage or any other injury, damage, or claim arising out of the
distribution, use or inability to use the Target System, provided QSS promptly
notifies OEM and gives complete information and reasonable assistance to OEM
(at OEM’s expense). This section B7.3 will not apply to any claims under
section B7.2 that QSS is obliged to defend, or to other allegations that the
Software or Documentation infringe third party rights, or to any final award of
a court of competent jurisdiction based on a finding of gross negligence or
willful misconduct of QSS.
B7.4 Warranty Disclaimer
& Limitation of Liability.
(a) Background. As
indicated in section B1.1 (Background), the Neutrino RTOS software is a
general-purpose modular realtime operating system. OEM will select a subset of its modules for use in a unique
hardware and software environment to achieve its desired functionality. QSS offers Priority Support to help
developers identify and solve their particular Software implementation
issues. Ultimately, OEM may find that
it cannot achieve its desired results.
While QSS is committed to providing versatile and reliable product, it
does not warrant that the Software can be made to function in accordance with
associated user documentation, or other published specifications, in the case
of every hardware platform and configuration of modules.
QSS
tests Commercially Released Runtime Components on the Reference Target.
However, QSS cannot warrant that any Software will function in accordance with
corresponding Documentation in every combination of hardware platform, software
environment, and Software configuration. OEM acknowledges that software bugs
are likely to be encountered when Software is used in OEM’s particular
application. OEM therefore accepts the responsibility of satisfying itself that
the Software is suitable for OEM’s intended use. This includes conducting
rigorous testing of the Software in combination with OEM’s value-added software
application(s) on OEM’s target hardware platform prior to its initial release,
and prior to the release of any related software or hardware modifications or
enhancements.
(b) Limited Warranty. QSS warrants to OEM for a period of ninety
(90) days from the Effective Date that:
(i) the Commercially Released
Software as delivered by QSS is capable of performing the functions described
in corresponding Documentation when used on a Reference Target. OEM’s sole
remedy, and QSS' sole obligation, for any breach of this warranty will be, at
QSS's option, to either:
(1) provide OEM with a free Solution for use as an
interim fix until QSS provides OEM with a free Update that corrects the
problem; or
(2) terminate this Agreement in respect of the
defective Software, in which case QSS will provide a refund of any associated
fees paid to QSS pursuant to the corresponding invoice; and
(ii) any tangible media on which
it delivers the Software (if any), will be free from defects in material and
workmanship under normal use for a period of ninety (90) days from the date of
QSS’s corresponding invoice. QSS is not responsible for media defects that
result from accident or abuse. OEM’s sole remedy for any breach of this media
warranty will be to receive replacement media.
(c) Exclusion of Other Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE PRODUCTS AND
SERVICES PROVIDED, IF ANY, UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT
ANY WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING IMPLIED WARRANTIES AND
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT. NOTHING STATED IN THIS
AGREEMENT WILL IMPLY THAT THE OPERATION OF ANY SOFTWARE WILL BE UNINTTERUPTED
OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED. OTHER WRITTEN OR ORAL
STATEMENTS BY QSS, ITS REPRESENATITVES OR OTHERS DO NOT CONSTITUTE WARRANTIES
OF QSS.
(d) Exclusion of Consequential Damages IN NO EVENT WILL EITHER
PARTY OR ITS SUBSIDIARIES, OR THEIR OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS,
DISTRIBUTORS, OR LICENSORS, (COLLECTIVELY, A PARTY AND ITS REPRESENTATIVES) BE
LIABLE TO THE OTHER PARTY AND ITS REPRESENTATIVES, OR ANY OTHER THIRD PARTY FOR
ANY INDIRECT, INCIDENTAL SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING
BUT NOT LIMITED TO LOST REVENUE, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR
ECONOMIC LOSS, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, ANY
USE OR INABILITY TO USE SOFTWARE PRODUCTS, OR ANY SERVICES PROVIDED OR
INABILITY TO OBTAIN SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE OR CLAIM.
(e) Limitation of Liability
IN NO EVENT WILL THE AGGREGATE LIABILITY OF QSS AND ITS REPRESENTATIVES FOR ANY
DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT,
TORT, OR OTHERWISE, EXCEED:
(i) FOR TYPE I SOFTWARE, THE
TOTAL FEES OEM HAS PAID TO QSS UNDER THIS AGREEMENT IN THE 24 MONTHS PRECEDING
THE CLAIM;
(ii) FOR TYPE II SOFTWARE AND FOR
SERVICES (IF ANY) THE TOTAL FEES OEM HAS PAID TO QSS UNDER THIS AGREEMENT IN
THE 12 MONTHS PRECEDING THE CLAIM; AND
(iii) FOR TYPE III SOFTWARE OR ANY
SOFTWARE THAT IS NOT COMMERCIALLY RELEASED BY QSS, OR ANY OTHER CLAIM UNDER THIS AGREEMENT US$10,000.
(f) Survival. SECTIONS
B7.4(C)-(E) SHALL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
(g) QSS Licensors. NEITHER
QSS NOR ANY OF ITS REPRESENTATIVES MAKES OR PASSES ON TO CUSTOMER OR OTHER
THIRD PARTIES, ANY WARRANTY OR REPRESENTATION ON BEHALF OF QSS'S LICENSORS.
B7.5 Term & Termination.
(a) Execution. This
Agreement may be executed by the parties by communicating to the other:
(i) in the case of OEM, a
Runtime Quotation duly accepted by execution or by electronic acceptance by a click-through mechanism or the like;
(ii) in the case of QSS, a Runtime Quotation;.
(b) Term. This Agreement commences on the Effective
Date and ends when terminated in accordance with this section B10.
(c) Termination by OEM.
Provided it is in compliance with the other terms of this Agreement, OEM
may terminate this Agreement at any time upon 30 days’ prior written notice.
(d) Termination by QSS. QSS may terminate this Agreement without
cause (i) up to such time as QSS fills the first order for License Stickers
under this Agreement; and (ii) any time after five (5) years from the Effective
Date upon 90 day’s prior written notice.
(e) Change to Agreement. Circumstances may dictate that QSS
change the method that the Software is distributed to OEM and/or to end users.
QSS may, upon 90 days written notice, change the terms of this Agreement that
relate to such distribution other than terms relating to price. If OEM chooses
not to accept these changes then QSS may terminate this Agreement upon a
further 30 days written notice.
(f) Immediate Termination. Either Party may terminate this
agreement immediately upon providing notice if the other:
(i) breaches a material term of
this Agreement that: (1) is incapable of cure, (2) could have been cured within
thirty (30) days of notice, but was not, or (3) required more than thirty (30)
days to cure but the defaulting Party, having received notice, has either failed
to commence or diligently pursue the cure during such period;
(ii) files, or has filed against
it: (1) a petition in bankruptcy, reorganization, debt arrangement, or other
proceeding under any bankruptcy law; or (2) any dissolution or liquidation proceeding;
and any such proceeding under (1) or (2) is not dismissed within sixty (60)
days from filing; or
(iii) becomes insolvent or ceases
to carry on business on a regular basis, and within thirty (30) days thereafter
the defaulting Party (or some financially and technically responsible successor
in interest acceptable to the aggrieved Party who assumes the defaulting
Party’s obligations) fails to resume doing business on a regular basis.
(g) Implication of Termination.
(i) General. The
provisions of this Agreement that are expressed or by their sense and context
are intended to survive the termination of this Agreement will survive,
including Sections B2.7 (Ownership & Reservations), B3.10 (Preservation),
B3.11 (Compliance with Laws); and B7 (Payment Terms, Risk Allocation and Sundry
Items). Termination is without prejudice to any right or remedy that may have
accrued, or be accruing to either Party prior to termination. Termination will
not relieve OEM from its obligation to pay QSS any and all fees or other
amounts due under this Agreement at any time or for any period. Any pre-payment
of Software royalties or license fees is
non-refundable.
(ii) Surviving Licenses. If either Party terminates this Agreement for any reason all
Target System EULAs granted prior to termination in accordance with the terms
of this Agreement will continue. All license rights of OEM and its Distributors
will immediately cease upon termination.
(a) Dispute Resolution.
In the event of any dispute arising from or regarding the subject matter
of this Agreement, the Parties agree to negotiate in good faith an equitable
resolution of the disputed matter. If
the Parties are unable to resolve the dispute, they will escalate the matter to
senior management within their respective organizations. If the dispute is not
resolved within ten (10) business days then either Party may commence legal,
equitable, or other proceedings upon providing the other Party a further ten
(10) business days notice of such intent. Each Party waives its rights to a
jury trial in any resulting litigation.
(b) Intentionally blank.
(c) Intentionally blank.
(d) Entire Agreement.
This Agreement, comprising Parts A and B along with any terms expressly
referenced by this Agreement, constitutes the entire agreement between the
Parties pertaining to its subject matter and supercedes any prior or
contemporaneous agreement, representation, statement, negotiation or
undertaking dealing with the same subject matter. No amendment, modification or
waiver of any part of this Agreement will be binding unless in a written
document that expressly refers to this Agreement and that is signed by both
parties. Except as otherwise expressly contemplated in Part A, the terms and
conditions of this Agreement will prevail over any inconsistent or additional
terms or conditions of either Party’s purchase orders or invoices. The terms and conditions of this Agreement
will prevail over the terms and conditions of the QNX Confidential Source
License Agreement, QNX Open Community License or QNX Community License
referenced in the headers of any source code provided by QSS.
(e) Assignment. Neither
party may assign this Agreement, or assign any rights or delegate any
obligations under this Agreement, without the prior written consent of the
other party except that QNX Software Systems and any Affiliate thereof (“QSS Group”) may assign this Agreement within the
QSS Group without consent of OEM. An assignment will be deemed to include any
merger of OEM with another party, whether or not OEM is the surviving entity,
the acquisition of more than 50% of any class of OEM’s voting stock by another
party, or the sale of more than 50% of OEM’s assets. Any attempted assignment
or delegation in violation of the foregoing will be void and of no effect. This
Agreement will inure to the benefit of and be binding upon the parties and
their respective successors and permitted assigns.
(f) Governing Law. This
Agreement will be governed by and construed in accordance with the laws in
force in the Province of Ontario, Canada without regard to the conflicts of
laws provisions thereof. The Parties expressly waive the provisions of the
United Nations Convention on Contracts for the International Sale of Goods.
(g) Notice. All notices must be in writing and delivered either
in person or by means evidenced by a delivery receipt, to the attention of the
title of the officer at the address specified at the end of Part A, with a copy
to the Legal Department. Such notice will be effective upon receipt.
(h) Severance. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction will, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
(i) Independent Parties. The Parties are independent
contractors. Neither Party has any express or implied right or authority to
assume or create any obligations on behalf of the other or to bind the other to
any contract, agreement or undertaking with any third party. Nothing in this
Agreement will be construed to create a partnership, joint venture, employment
or agency relationship between QSS and OEM.
(j) Execution. This
Agreement may be executed in counterparts, each of which will be considered an
original, but both of which together will constitute one and the same
instrument. Any signature of this Agreement by one Party communicated to the
other by facsimile will constitute execution of this Agreement.
(k) Interpretation. The divisions and headings in this Agreement
have been included for convenience only and will not affect its construction or
interpretation.
(l) English Language.
The Parties have agreed that this Agreement be drawn-up in the English
language. Furthermore, the Parties undertake never to contest the legality or
validity of the present Agreement because of the fact that it has been drawn-up
in the English language.
(m) Reference Account.
The parties each agree to act as a reference account for each other for
activities relating to the Software and the Target System(s), provided they are
given an opportunity to pre-approve the intended reference(s), such approval
not to be unreasonably withheld or delayed.
Reference activities include, but are not limited to: press releases
announcing design wins, media/analyst references, sales/investor references,
spotlight on activities in collateral (e.g., case studies, ROI studies, white
papers), joint marketing (e.g., trade show events, web casts, seminars,
by-lined articles, video testimonials, advertising campaigns, speaking
engagements), internal marketing support, and display of each other’s name
(and, if applicable, display of each other’s logo) in marketing/sales
collateral and advertising.
(i) Preliminary Runtime Quotations. QSS issues preliminary
runtime quotations (which may be called “Runtime Opportunities”) that are not
formal Runtime Quotations. Any products quoted on preliminary runtime
quotations are subject to availability.
B8 Additional / Alternate Terms
for Specific Software.
This section B8 provides
additional or alternate terms for specific Runtime Components. In the event of a conflict between the terms
of this Part and other terms of this Agreement, the terms of this Part will
prevail.
B8.1 Voyager Software.
(a) Definition. "Voyager Software" means the Runtime Component identified in a Runtime Quotation by a description that includes the trademark "Voyager". Voyager Software is Type III Software.
(b) Marking. OEM will not alter or delete any printed or
on-screen copyright, trade secret or proprietary and/or legal notices contained
in or on copies of the Voyager Software, and will ensure that: (i) it reproduces
the copyright notices of the University of Illinois and Spyglass, Inc. on the
"splash screen" or in the same location where OEM reproduces its own
copyright notices; and (ii) it includes the following statements of
identification and attribution in the Voyager Software by (1) inclusion on a
"splash screen"; and/or (2) inclusion in an "about box";
and (3) in the associated documentation:
NCSA Mosaic
was developed by the National Center for Supercomputing Applications at the
University of Illinois at Urbana-Champaign. This version is being distributed
under a license agreement with Spyglass, Inc. and QNX Software Systems
OEM agrees
to provide an example of such "splash screens", "about
boxes" and other reproductions of all notices, copyrights, trademarks and
logos prior to distribution of the Voyager Software for approval by QSS and its
licensors the first time OEM reproduces such items and any time OEM
substantially changes such items. No right is being granted hereunder for OEM
to use trademarks of QSS, Spyglass, Inc. or their respective licensors.
B8.1 Citrix ICA.
(a) Definition. "ICA
Client Software" means the Runtime Component identified in a Runtime
Quotation by a description which
includes the trademarks "Citrix" and/ or "ICA". The ICA
Client Software is Type III Software.
(b) International Distribution. OEM will not distribute the ICA Client
Software or any related technical data to the People's Republic of China or
Afghanistan.
(c) Testing. OEM will
exercise a level of quality assurance that is no less diligent with regard to
media, replication and testing procedures, as that used by OEM for its own
products, in connection with use and distribution of the ICA Client Software in
the Target System.
(d) Marking. Copyright and Patent Notices. OEM will not
alter or remove any copyright, trademark and/or patent notices in the ICA
Client Software. OEM agrees to comply with the following copyright and patent
notice requirements: on initial load screen - "© 1998 Citrix Systems, Inc."
(e) Term. Any rights in the
ICA Client Software will be effective as of the Effective Date and will
continue until (i) termination of this Agreement or (ii) expiration (January
26, 2006) or termination of QSS's underlying license rights from Citrix, whichever
occurs first. Except if this Agreement is terminated, rights in the ICA Client
Software will be extended for any period that QSS negotiates with Citrix for
continuation of the rights provided under this Agreement. Effective upon such
termination or expiry of rights per B8.1(g)(ii), all license rights granted in
the ICA Client Software will cease and OEM will cease to use all trademarks and
trade names of Citrix. All end-user licenses properly granted by OEM will
survive termination.
(h) Third Party Beneficiary.
OEM acknowledges and agrees that Citrix Systems, Inc. is a third party
beneficiary in respect of all terms and conditions of this Agreement, including
but not limited to those of this Section, as applied to the ICA Client
Software.