This software is licensed according to the provisions of the
Mbedthis AppWeb Commercial License Agreement below. Open
Source licenses are also available for those who prefer them. This document is also available as a PDF.
- Definitions
“Annual Subscription Fee” means the annual payment made by the Licensee to Mbedthis in consideration of the rights granted in this agreement.
“Integrated Product” means the Licensee's application or device incorporating the Software.
“Program Errors"
means 1 or more reproducible deviations in the standard, unmodified
Product from the applicable specifications shown in the
documentation.corporating the Software.
"Project"
means a single Licensee development project that creates integrated
products and embeds or integrates the Software into a larger
application or system together with other software or hardware of
significant value-add.
“Revenue” means the gross project revenues before taxes and cost of goods.
"Software"
means the supplied Mbedthis AppWeb in binary form including all source
code, headers, documentation and data files including updates and
upgrades that have been publicly released.
“Units”
means discrete computing systems shipped during a twelve (12) month
period that are executing the Software and may have multiple CPUs in a
single enclosure.
- License to Use
2.1 Subject to the terms and conditions of this Agreement, the Licensee
is hereby granted a world-wide, royalty-free, non-exclusive,
non-transferable (except as permitted herein) right to use, modify and
reproduce the Software for the purposes of creating Integrated Products
by a single Project.
2.2
The Licensee agrees not to export or re-export the Software or any copy
or adaptation in violation of the US Export Administration regulations
or other applicable regulation.
- Term of License
3.1 This Agreement shall be effective for one (1) years from the
effective date of this Agreement and shall automatically renew unless
terminated earlier under the provisions of this Agreement.
3.2 Either party may terminate this agreement by written notice to the
other party if the other party breaches any material provision of this
Agreement and such breach is not cured within ninety (90) days after
written notice thereof is received by the breaching party.
3.3 The Licensee may terminate this license at any time by providing
Mbedthis written notice stating the effective date of the termination
and immediately ceasing to ship Integrated Products containing the
Software. If this license is terminated for any reason by either party,
the Licensee is not entitled to a refund of the whole or any part of
the fees paid. In the event of such termination, the Licensee's right
to use Integrated Products that were sold prior to termination is not
affected.
- Price and Payment
4.1 The Licensee shall pay Mbedthis an Annual Subscription Fee for the
rights granted in this Agreement to ship Integrated Products containing
the Software for the following twelve (12) month period commencing at
the execution of this Agreement. The initial payment is due upon
execution of this Agreement and subsequent payments are due on the 12
month anniversary of this Agreement. Payments shall be made without any
deduction and shall be exclusive of all taxes and duties.
4.2 The amount of the Annual Subscription Fee is determined each year
by the current size of the Licensee's business for Integrated Products.
It is calculated by the Licensee's good faith estimate of the number of
Units of Integrated Products that will be shipped during the following
twelve (12) month period.
4.3 If the Licensee ships more Units than estimated pursuant to Section
4.2, the Licensee shall upgrade its Software license within thirty (30)
days and remit payment for the difference up to the next subscription
level as described in Appendix A.
4.4 Mbedthis shall provide Licensee with a minimum of thirty (30) days
notice prior to increasing the Annual Subscription Fee. Price increases
will not affect current subscription fee levels and will only apply to
future subscription payments.
- Assignment
5.1 Licensee may not assign or otherwise transfer any of the rights or
obligations arising out of this Agreement except to transfer this
Agreement to any successor in connection with any transfer of all or
substantially all of its assets or to any party that acquires voting
control of the Licensee in a merger, acquisition or reorganization.
- Audit Rights
6.1 During the term of this Agreement and for a six (6) month period
following termination, Mbedthis shall have the right at its own
expense, to conduct periodic reviews of the Licensee's records relating
to its distribution of integrated products containing the Software for
the purpose of verifying the Licensee’s appropriate payment of the
licensee fees due hereunder. Mbedthis shall exercise this right upon no
fewer than thirty (30) days' prior written notice. The Licensee will
provide Mbedthis with reasonable accommodation for the review and
reasonable use of available office equipment. The Licensee shall pay
the cost of any audit, including (without limitation) reasonable travel
expenses and the costs of any attorneys and consultants, if the amount
underpaid to Mbedthis is three percent (5%) or more of the amount
actually paid. Complete and accurate documents shall be retained by the
Licensee for two (2) years following termination of this Agreement.
- Copyright and Other Laws
7.1 The Software is owned by Mbedthis and is protected by international
copyright, trademark and any other applicable laws. The Licensee must
comply with the terms of the copyright notice in the Software and must
never remove any notice or product identification from the Software or
the accompanying documentation. The Licensee acknowledges that the
copyright, patent, trade secret and all other intellectual property
rights in the Software shall remain the exclusive property of Mbedthis.
The Licensee also acknowledges that Mbedthis owns the Mbedthis and
AppWeb trademarks and logos.
7.2 All right and title to modifications made solely by the Licensee to
the Software and the right and title to other software that is included
by the Licensee in an Integrated Product, shall remain the property of
the Licensee.
- Warranties and Limitations
8.1 Limited Warranty: If media is provided, Mbedthis warrants that the
media in which the Software is recorded are free from defects in
materials and faulty workmanship under normal use for a period of 90
days from the date of purchase (as evidenced by a copy of the receipt).
During this warranty period, Mbedthis will, at its option either: (1)
return the price paid; or (2) repair or replace, free of charge, the
defective media upon which the Software has been supplied.
8.2 Software Changes: Mbedthis reserves the right at any time not to
release or to discontinue release of any Software and to alter prices,
features, specifications, capabilities, functions, programming
interfaces licensing terms, release dates, general availability or
other characteristics of the Software.
8.3 Support: The Licensee is entitled to support services in accordance
with the terms and conditions of the Technical Support Addendum
as defined in this Agreement.
In no event shall Licensee be entitled to support services in excess of
the value of the Annual Subscription Fee paid for the current year.
8.4 No Other Warranties: Mbedthis DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED TO THE
Software, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE
AND THIS Agreement. The Software, and any accompanying written
materials, are supplied "AS IS", without warranty of any kind (other
than the limited warranty contained in clause 4.a). Mbedthis does not
warrant, guarantee or make any representations regarding the use of or
the results of the use of the Software or as to its correctness,
accuracy, reliability, currentness or otherwise. The entire risk as to
results and performance of the Software is assumed by the Licensee.
Where legislation does not permit such exclusion of liability,
Mbedthis's liability is limited to: (1) replacement of the Software; or
(2) correction of defects in the Software, at its option.
8.5 No Liability for Consequential Damages: In no event shall Mbedthis
or any of its authorized representatives be liable to the Licensee for
any damages (including, damages for loss of business profits, business
interruption and loss of business information or computer programs)
because of the Licensee's use or inability to use the Software, even if
Mbedthis has been advised by the Licensee of the possibility of such
damages. In any event, Mbedthis's entire liability under any provision
of this Agreement shall be limited to the amount actually paid by the
Licensee for the Software.
8.6 Limitation of Liability: In no event shall Mbedthis be liable for
any damages, whether in contract or tort (including negligence),
including but not limited to direct, consequential, special, exemplary,
incidental and indirect damages or any claims described in Section 12
below, arising out of or in connection with this Agreement or the use,
the results of use, or the inability to use the Software, even if
Mbedthis has been advised of the possibility of such damages. The
Licensee agrees that it shall have the sole responsibility for
protecting the Licensee's data, by periodic standby or otherwise, used
in connection with the Software.
- Indemnification
9.1 Mbedthis shall defend, at its expense, any claim, lawsuit or
related action brought against the Licensee alleging that the
Licensee's use of the Software in accordance with this Agreement
infringes a United States patent or copyright, and shall pay all costs
and damages finally awarded in any such action (and reasonable
attorneys' fees incurred in such action), provided that Mbedthis is
given prompt written notice of such claim, any information in the
Licensee's possession related to such claim, reasonable assistance by
the Licensee and sole authority to settle or defend such claim.
Notwithstanding the foregoing, Mbedthis shall not have any liability or
obligation under this Section 5 to the extent that the alleged
infringement is based upon the use of the Software in combination with
any other computer programs or technology not licensed by Mbedthis to
the Licensee.
- US Government Restricted Rights
10.1 The Software provided under this License Agreement is commercial
computer software developed exclusively at private expense, and in all
respects are proprietary data belonging solely to Mbedthis.
10.2 Department of Defense End Users: If the Software is acquired by or
on behalf of agencies or units of the Department of Defense (DOD),
then, pursuant to DoD FAR Supplement Section 227.7202 and its
successors (48 C.F.R. 227.7202) the Government's right to use,
reproduce or disclose the Software and any accompanying documentation
acquired under this License Agreement is subject to the restrictions of
this Agreement.
10.3
Civilian Agency End Users: If the Software is acquired by or on behalf
of civilian agencies of the US Government, then, pursuant to FAR
Section 12.212 and its successors (48 C.F.R. 12.212), the Government's
right to use, reproduce or disclose the Software and any accompanying
documentation acquired under this License Agreement is subject to the
restrictions of this License Agreement.
- Notices
11.1 Any notice required or permitted by this Agreement shall be in
writing and shall be deemed sufficient (a) upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed
facsimile, (b) one (1) day after e-mail transmission via Internet (with
a copy by first-class certified or registered mail, postage prepaid on
the first business day after transmission) or (c) forty-eight (48)
hours after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid,
provided in each case that such notice is addressed to the party's
address, facsimile number or e-mail address as set forth below, or as
subsequently modified by written notice.
- Severability
12.1 If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith, in order to maintain the economic
position enjoyed by each party as close as possible to that under the
provision rendered unenforceable. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such a
provision, then (a) such provision shall be excluded from this
Agreement, (b) the balance of the Agreement shall be interpreted as if
such provision were so excluded and (c) the balance of the Agreement
shall be enforceable in accordance with its terms.
12.2 If Mbedthis and its successors cease operate in the ordinary
course of business, the License's rights granted in Section 2,
including the ability to create and sell Integrated Products, shall
continue unaffected. In such an event, the Licensee shall have no
obligation to pay further Annual Subscription Fees.
- Entire Agreement
13.1 This Agreement contains the entire agreement between the Licensee
and Mbedthis and supersedes all prior agreements, negotiations or other
communications between the parties relating to the Software. This
Agreement may only be amended or modified by agreement in writing.
-
Applicable Law
14.1
This Agreement will be governed by the laws of the State of Washington,
USA and the parties submit to the non-exclusive jurisdiction of the
courts of that state.
Appendix A
Annual Subscription Fee Schedule*
|
Qualification |
USD Price |
Class A |
Less than 100 Units per year and less than $ 100,000 project Revenues |
$495 |
Class B |
Less than 500 Units per year and less than $ 500,000 project Revenues |
$995 |
Class C |
Less than 2,000 Units per year and less than $2 million project Revenues |
$2,995 |
Class D |
Less than 5,000 Units per year and less than $5 million project Revenues |
$4,995 |
Class E |
Less than 15,000 Units per year and less than $15 million project Revenues |
$9,995 |
Unlimited |
Unlimited Units and unlimited project Revenues |
CALL |
* Effective July 1, 2004
Technical Support Addendum
- Technical Support
15.1 Mbedthis will provide technical support services to Licensee for
Program Errors reported to Mbedthis by Licensee and not resolved by
Licensee. Subject to the terms below, services shall include efforts by
Mbedthis to identify defective source code and to provide corrections,
workarounds and/or patches to correct Program Errors.
15.2 Mbedthis will use reasonable commercial efforts to resolve each
significant Program Error that Licensee reports to Mbedthis and that
Mbedthis confirms. Licensee shall report Program Errors using the
designated email address and shall provide sufficient information for
Mbedthis to duplicate the Program Error before Mbethis's response
obligations will commence. This report shall include a complete
description of the problem and how to reproduce it, an initial severity
level assessment, full details of the software and hardware environment
and a test case that demonstrates the problem using the standard
unmodified Software distribution. Mbedthis will provide Licensee with
an e-mail address which Licensee may use to report Program Errors.
Mbedthis may reclassify Program Errors if it reasonably believes that
Licensee's classification is incorrect.
15.3 Mbedthis shall respond Program Errors reported by Licensee by
providing either a reasonable workaround, an object code patch or a
specific action plan for how Mbedthis will address the problem and an
estimate of how long it will take to rectify the defect. Unless
otherwise authorized in writing by Mbedthis, Mbedthis will not be
required to correct any Program Error caused by (a) any non conformance
caused by neglect, misuse, alteration, modification, or enhancement of
the Software; (b) the failure to provide an installation environment
recommended for the Software; (c) use of the Software for other than
the specific purpose for which the Software is intended; (d) use of the
Software on any systems other than the specified hardware platform for
such Software; or (e) failure to incorporate any Software revision or
patch previously released by Mbedthis which corrects such Program
Error.
15.4 Mbedthis will
use reasonable commercial efforts to communicate with Licensee about
the Program Error via e-mail within the targeted response times set
forth below.