License

The following is a legal agreement between you and Monokai. When you purchase an OEM license for Monoslideshow, Monokai grants you, the purchaser, a non-exclusive, non-transferable license to replicate and bundle the Licensed Software with Licensee's Product, as defined herein and under the terms and conditions set forth herein.

  1. CERTAIN DEFINITIONS

    For purposes of this Agreement (including any and all Schedules and amendments made to or incorporated herein now or in the future), the following capitalized terms shall have the following meaning:

    1. "Agreement"

      This OEM software license agreement.

    2. "Licensor"

      Monokai

    3. "Licensee"

      The purchaser of this license.

    4. "Effective Date"

      The date that Licensor purchases this license.

    5. "Deliverable(s)"

      one copy of the Licensed Software and all current technical information.

    6. "Enabled Product(s)"

      one copy of Licensee's Product, which includes one bundled copy of the Licensed Software.

    7. "Licensee's Product(s)"

      The Licensee's hardware and/or software.

    8. "Licensed Software"

      Licensor's proprietary software ("Monoslideshow") in .SWF file format.

    9. "Current version of the Licensed Software"

      The version of the Licensed Software available to the Licensee at the Effective Date of the Agreement, and also all subsequent 2.x updates to this version.

    10. "Marketing Transferees"

      Any person or entity who shall act as Licensee's agent (as a promoter, sale's person, representative, dealer or otherwise) and who shall assist Licensee with the marketing and services relating to the Enabled Products.

    11. "Sell", "Sale" and "Sold"

      To license the Enabled Product(s) to End User(s) for use by End User as a consumer or for its own internal business purposes, either directly or through the use of Marketing Transferees.

    12. "End User"

      The ultimate consumer of the Enabled Product(s).

  2. LICENSE

    1. Grant of License

      Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants Licensee, and Licensee hereby accepts, a non exclusive license to:
      1. distribute either directly or via Licensee's Marketing Transferees, to End Users, copies of the Licensed Software as a part of Enabled Products;
      2. to reproduce Licensed Software on hard drive, CD and/or DVD, in order to integrate the Licensed Software with Licensee's Products. Licensee has no right to reproduce and distribute the Licensed Software otherwise as described in this clause 2.

    2. Reserved Rights

      Apart from the rights explicitly granted in this Agreement, Licensee shall have no other right, title, interest ownership or license rights, express or implied, in the Licensed Software.

    3. Source Code Restrictions

      Licensee agrees not to decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine source code for the executable code of the Licensed Software, and agrees not to permit or authorize anyone else to do so.

    4. No Modification

      Save as otherwise expressly provided herein (including but not limited to Section 2a and 2c above), the Licensee shall not, and shall not permit any third party to copy, make error corrections to or otherwise modify or adapt the Licensed Software nor create derivative works upon the Licensed Software.

    5. Territory

      The rights and licenses granted under this clause 2 are effective worldwide.

  3. INDEMNIFICATION

    1. By Licensor

      Licensor agrees to indemnify and hold Licensee harmless from and against or, at its option, settle any third party claims against Licensee for any loss, damage, liability, or expense (including reasonable attorneys' fees) sustained by it as a result of a claim or allegation that the use and/or distribution of the Licensed Software, as licensed in this Agreement, infringe any intellectual property rights of any third party.

    2. By Licensee

      Licensee hereby indemnifies and holds harmless Licensor from and against any and all claims, actions, or demands arising from or relating to any Enabled Products or portions thereof.

  4. LIMITATION OF LIABILITY

    Nothing in this Agreement shall exclude or limit either party's liability for
    1. death or personal injury caused by its negligence;
    2. the tort of deceit; or
    3. any other liability which cannot be excluded or limited by law.
    SUBJECT TO THE FOREGOING, THE PARTIES' AGREE THAT THE TOTAL LIABILITY TO EACH OTHER FOR DAMAGES OF ANY KIND, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED ONLY TO THE AMOUNT OF PAYMENTS RECEIVED BY LICENSOR FROM LICENSEE UNDER THIS AGREEMENT. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR SAVINGS, LOST BUSINESS, LOSS OF DATA, LOSS OF REVENUE, LOSS OF USE OR MONEY, LOSS OF BUSINESS, LOSS OF OPPORTUNITY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (WHETHER OR NOT ALSO CONSTITUTING ONE OF THE FOREGOING SPECIFIC TYPES OF LOSS), WHETHER BASED ON BREACH OF CONTRACT TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

  5. INTELLECTUAL PROPERTY RIGHTS

    1. Ownership

      Licensor declares itself to be the sole owner by good and valuable title of all patents, trademarks, industrial drawings and copyrights with respect to the Licensed Software, and that its rights are not disputed, in whole or in part, by any person or entity at the time of signing this Agreement. Licensor further declares that its execution of this Agreement does not, and the performance of its obligations under this Agreement will not violate any other agreement between it and any third party. The Parties acknowledge that all patents, trademarks, industrial drawings and copyrights, and any applications therefore, with respect to the Licensed Software are the exclusive property of the Licensor and that all patents, trademarks, industrial drawings and copyrights with respect to the Licensee's Products are the exclusive property of Licensee. Licensee covenants and promises in good faith to never knowingly infringe, directly or indirectly, any patent, trademark, industrial drawing or copyright of the Licensor, and Licensor covenants and promises in good faith to never knowingly infringe, directly or indirectly, any patent, trademark, industrial drawing or copyright of Licensee.

    2. Intellectual Property Notice

      As an additional means to protect Licensor's intellectual property, Licensee agrees that a valid Licensor copyright notice for the Licensed Software will appear on the media, and, where possible, program interface, containing the Licensed Software and any user packaging materials associated therein and on any documentation and promotion material in the form in which it appears on the Deliverables.

    3. Independent Development

      All intellectual property rights derived from the performance of the interface and/or the interoperability work pursuant to this Agreement, shall be exclusively owned by the party performing such work, irrespective of any contribution, assistance and/or support the developing party may have received with respect to the foregoing from the other party.

  6. TERM AND TERMINATION

    1. Term

      The term of this Agreement shall commence at the Effective Date stated herein and shall continue for as long as Licensee continues to use Current version of the Licensed Software.

    2. Termination

      This Agreement may be terminated
      1. by the Licensor in the event that the other party has committed a material breach of any of its obligations hereunder that has not been cured within 60 (sixty) days after the Licensor has received a written notice thereof;
      2. by mutual written agreement of the parties;

    3. Termination Upon Bankruptcy

      Effective immediately and without any requirement of notice, either party may, at its option, terminate this Agreement and/or suspend its performance in the event that
      1. the other party files a petition in bankruptcy, files a petition seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors;
      2. a receiver, trustee, or similar officer is appointed for the business or property of such party;
      3. any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against such party and not stayed, enjoined, or discharged within 60 (sixty) days; or
      4. the other party adopts a resolution for discontinuance of its business or for dissolution.

    4. Limitation on Liability

      In the event of termination by either party in accordance with any of the provisions of this Agreement, neither party shall be liable to the other, as a result of such termination, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of either Party.

    5. Consequences

      Upon termination of this Agreement, the license granted to Licensee in this Agreement shall terminate and Licensee shall immediately discontinue all further use of the Licensed Software promotion, marketing or sale, leasing, licensing or any other distribution of the Licensed Software and/or the Enabled Products.

  7. MISCELLANEOUS

    1. No Conflict

      Each party represents and warrants, on a present and ongoing basis, to the other party that its commitments and the rights and privileges granted herein do not conflict with any other agreement or legal obligation.

    2. Assignment

      Other than as provided in parts of this Agreement, the rights of either Party under this Agreement are restricted solely to such Party and shall not be assigned, transferred, subleased, sub-licensed, encumbered, or subject to any security interest without the prior written consent of the other Party, which will not be unreasonably withheld. Any attempted assignment, without the prior written consent of the non­assigning party will be void and of no effect.