Help:Software License Agreement

This Agreement is between the customer named below (the “Customer”) and MindTouch, Inc. (“MindTouch”). Customer desires to use the MindTouch Managed Knowledge Server product designated below as the Software Product and MindTouch is willing to grant Customer the right to use the Software Product on the terms and conditions of this Agreement. Now therefore, the parties agree as follows:

1. DEFINITIONS. For purposes of this Agreement, the following words, terms and phrases will have the meanings assigned to them below:

1.1 “Designated Equipment” will mean (i) with respect to the MindTouch Managed Knowledge Server EE product, any computer system products on which Customer installs that product, and (ii) with respect to the MindTouch Managed Knowledge Server 20 and the MindTouch Managed Knowledge Server 100 products, the computer system with which the products are delivered.

1.2 “Software Product” will mean the ™ MindTouch Managed Knowledge Server EE product ™ Managed Knowledge Server 20 product ™ MindTouch Managed Knowledge Server 100 product.

1.3 “GNU Public License” will mean the GNU General Public License published by the Free Software Foundation, Inc.

1.4 “GNU Public License Software” will mean the software incorporated in the Software Product that is designated in the Software Product, or associated electronic or hard copy documentation, as governed by the GNU Public License.

1.5 “Open Source License Terms” will mean the various license terms and conditions, other than the terms and conditions of the GNU Public License, that are incorporated in the Software Product or associated electronic or hard copy documentation.

1.6 “Open Source License Software” will mean the software incorporated in the Software Product that is designated in the Software Product, or associated electronic or hard copy documentation, as governed by Open Source License Terms.

1.7 “MindTouch Contributed Components” will mean those components of the GNU Public License Software and Open Source License Software in which MindTouch owns the copyright under applicable law.

1.8 “MindTouch Licensed Software” will mean those portions of the Software Product that are not GNU Public License Software or Open Source License Software.

2. MINDTOUCH LICENSED SOFTWARE..

2.1 Subject to the terms and conditions of this Agreement, MindTouch grants to Customer a single, personal and nonexclusive license to use the MindTouch Licensed Software for Customer’s internal business purposes, including the provision of data processing service to others in the normal course of Customer's business.  Customer may install and use the MindTouch Licensed Software on only the Designated Equipment; provided that, Customer may temporarily transfer the MindTouch Licensed Software to other equipment approved by MindTouch for the period the Designated Equipment is inoperable as a result of any malfunction.  No license to the MindTouch Licensed Software is granted to Customer except that expressly set forth in this Agreement.  No rights to sublicense or distribute the MindTouch Licensed Software are granted.  Title to the MindTouch Licensed Software, and all rights not specifically granted to Customer by this license, will remain in MindTouch and its suppliers.

2.2 The rights granted under this Agreement will not be sold, leased, assigned, sublicensed or otherwise transferred, in whole or in part, directly or indirectly.  Customer may not lend, lease, license or otherwise make the MindTouch Licensed Software available for any reason to any third parties, other than Customer contractors that require such access in the ordinary course of providing services to Customer.  MindTouch may include features in the MindTouch Licensed Software that restrict unlicensed use of the Software Product.

2.3 No license to use the MindTouch Licensed Software in source code form is granted hereunder.  Customer may use the MindTouch Licensed Software in binary form only.

2.4 Customer will not copy the MindTouch Licensed Software, or any on-line or hard copy form of any documentation for the MindTouch Licensed Software, except that Customer may make and maintain one (1) copy of the MindTouch Licensed Software and such documentation for back-up and archival purposes. Customer will reproduce in such archival copies all proprietary and restrictive notices set forth in the MindTouch Licensed Software and such documentation.

2.5 The Software Product may incorporate MindTouch Licensed Software, GNU Public License Software, Open Source Software and Additionally Restricted Software.  The grant of rights to the MindTouch Licensed Software under this Agreement are conditioned upon Customer’s agreement with the terms and conditions of this Agreement.

2.6 Customer will not modify, clone, disassemble, decompile, decrypt or otherwise reverse engineer any part of the MindTouch Licensed Software, adopt any part of the MindTouch Licensed Software as its own, or adapt the MindTouch Licensed Software into a computer language in which it was not provided by MindTouch; provided that, nothing in this Section 2.6 will be deemed to limit any applicable rights under the European Community Council Directive on the Legal Protection of Computer Programs dated May 14, 1991.

3. GNU Public License Software and Open Source License Software .

3.1 With the limited exception of the MindTouch Contributed Components, MindTouch does not grant any rights with respect to the GNU Public License Software or the Open Source License Software.  Customer’s rights with respect to the GNU Public License Software will be limited to the rights granted, and will be subject to the conditions and limitations imposed under, those versions of the GNU Public License Software designated applicable by respective copyright owners of the GNU Public License Software.  Customer’s rights with respect to the Open Source License Software will be limited to the rights granted, and will be subject to the conditions and limitations imposed under, the respective Open Source License Terms.

3.2 Customer acknowledges and agrees that (i) MindTouch cannot verify that the GNU Public License Software or Open Source License Software have validly been made available by parties having the right to do so, or (ii) MindTouch does not warrant that the GNU Public License or applicable Open Source License Terms effectively grant Customer the rights necessary for Customer to use the GNU Public License Software or Open Source License Software as contemplated by Customer.

4. WARRANTY.

THE SOFTWARE PRODUCTS ARE PROVIDED BY MINDTOUCH TO CUSTOMER “AS IS”, AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE PRODUCTS, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED BY MindTouch, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR FREEDOM OF THE SOFTWARE PRODUCTS FROM INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS, AND ALL OBLIGATIONS OR LIABILITIES ON THE PART OF MindTouch FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE, MAINTENANCE OR PERFORMANCE OF THE SOFTWARE PRODUCTS.

5 LIMITATION OF REMEDIES.

MINDTOUCH WILL HAVE NO LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RELATING TO THE SOFTWARE PRODUCTS OR THE USE OF THE SOFTWARE PRODUCTS BY CUSTOMER, OR ANY OTHER PERFORMANCE UNDER OR PURSUANT TO THIS AGREEMENT (INCLUDING LIABILITY FOR NEGLIGENCE) EXCEPT FOR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF MINDTOUCH.  IN NO EVENT WILL MINDTOUCH’S LIABILITY OF ANY KIND WITH RESPECT TO THE SOFTWARE PRODUCTS INCLUDE ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, EVEN IF MINDTOUCH IS ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.

6. INTELLECTUAL PROPERTY INDEMNIFICATION.

MindTouch will indemnify and hold Customer harmless with respect to any claim that the MindTouch Licensed Software infringes any U.S. copyright.  The foregoing indemnification is conditioned upon Customer giving MindTouch prompt notice of the claim, granting MindTouch sole control of the defense or settlement of the claim and cooperating fully with MindTouch's defense or settlement.  In the event any MindTouch Licensed Software is held to infringe and Customer’s use of that MindTouch Licensed Software is enjoined, MindTouch may, at its expense and option either (i) obtain for Customer the right to continue using the MindTouch Licensed Software consistent with the terms of this Agreement, (ii) replace or modify the Software so it becomes non‑infringing, or (iii) accept the return of the affected MindTouch Licensed Software and grant Customer a credit equal to any paid-up license charge paid, less reasonable depreciation.  MindTouch will not be liable to Customer for any claim that is based upon use of the MindTouch Licensed Software in modified form, use of the MindTouch Licensed Software in connection with equipment or software not approved by MindTouch, use of the MindTouch Licensed Software in a manner for which the MindTouch Licensed Software was not designed, or use of any version of the MindTouch Licensed Software that was maintenance release non-infringing version made available as part of support and maintenance services with respect to the Software Product.

7. TERM AND TERMINATION.

This Agreement will take effect as of the date this Agreement is executed by Customer, and will remain in effect until terminated.  Customer can terminate this Agreement, with or without cause, upon twenty (20) days written notice to MindTouch.  This Agreement will automatically terminate if Customer breaches any provision of this Agreement.  Within ten (10) days after termination of this Agreement for any reason Customer will return to MindTouch any copies in its possession of the MindTouch Licensed Software.  The provisions of Sections 4 and 5 of this Agreement will survive expiration of this Agreement.  Customer’s rights and obligations with respect to the GNU Public License Software and Open Source License Software will survive the termination or expiration of this Agreement in accordance with the terms and conditions of the applicable Open Source License Terms or version of the GNU Public License.

8. GENERAL.

8.1 Customer may not assign or otherwise transfer its rights or obligations under this Agreement except with the prior written consent of MindTouch, which consent will not be unreasonably withheld.

8.2 No failure by either party to take any action or assert any right hereunder will be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right.

8.3 This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous agreements by and between MindTouch and Customer as well as all proposals, oral or written, and all negotiations, conversations or discussions heretofore had between the parties related to this agreement.  Customer acknowledges that it has not been induced to enter into this agreement by any representations or statements, oral or written, not expressly contained herein.

8.4 No modification of this Agreement will be binding on either party unless it is in writing and signed by both parties.

8.5 In the event that any of the terms of this Agreement are in conflict with any applicable rule of law or statutory provision or are otherwise unenforceable under the applicable laws or regulations of any government or subdivision thereof, such terms will be deemed stricken from this Agreement, but such invalidity or unenforceability will not invalidate any of the other terms of this Agreement and this Agreement will continue in force.

8.6 This Agreement will be governed by and interpreted in accordance with the laws of the State of Minnesota, U.S.A., excluding the United Nations Convention on Contracts for the International Sale of Goods.