This Ephox OEM License Agreement (the “Agreement”) between Ephox Corporation (“Ephox”) and the organization named in the Ephox Customer-Signed Quote (“Licensee”) is made and entered into as of the date of the customer’s signature attached to the Customer-Signed Quote (“Effective Date”). Together with the Customer-Signed Quote these documents constitute the terms and conditions for the use of Ephox Software.
In this Agreement the terms listed below have the following defined meanings:
- “Subscription Fees” means the fees payable under Section 3 and as specified in the Licensee-Signed Quote.
- “Subscription Period” means a subscription period as specified in the Licensee-Signed Quote.
- “Authorized” means a Licensee is entitled to Use the Licensed Software for a specific purpose or purposes or to access certain services provided by Ephox. Licensee is specifically Authorized in the Licensee-Signed Quote of the Agreement or in an official receipt issued by Ephox.
- “Customer” is any person or entity who receives a right to use the Licensee Product or Licensee Service for its own use and not for resale or further sublicensing, through a license granted by Licensee.
- “Customer Agreement” means a standard form agreement under which a Customer is licensed by Licensee to use the Licensee Subscription Service or Licensee Standalone Product.
- “Developer” is any person who writes computer code that is incorporated in Licensee Subscription Service or Licensee Standalone Products.
- “Effective Date” means, unless otherwise specified in the Agreement, the date that Licensee downloaded the Licensed Software.
- “Ephox Licensee” means an organization that has a current and valid agreement with Ephox to sell the Software or incorporate the Software in an application.
- “Ephox Product” means Licensed Software and Documentation provided by Ephox.
- “Documentation” means the user documentation, and other reference materials, provided by Ephox for the Licensed Software.
- “Licensed Software” means executable code versions of Ephox’s Software listed in the Licensee-Signed Quote and Licensed to Licensee under this Agreement, and all Updates or Successor Software Products that Ephox may provide to Licensee.
- “License Key” means a sequence of numbers and characters used to unlock the Licensed Software.
- “Licensee Service” or “Licensee Subscription Service” means the combination of the Licensee Subscription Service and the Licensed Software distributed by the Licensee.
- “Licensee-Signed Quote” means an official quote issued by Ephox that has been signed and returned to Ephox by the Licensee prior to the Use of the Software.
- “Licensee Subscription Service” means the Software-as-a-Service (“Subscription Service”) that will be combined with the Licensed Software specifically identified in the Licensee-Signed Quote.
- “Licensee Standalone Product” means the software product that will be combined with the Licensed Software specifically specifically identified in the Licensee-Signed Quote.
- “Standalone Product” means a Licensee-provided software application (“Licensee Product”) where the Licensee supplies their Customer with a standalone software application. The definition of “Standalone Product” does not include any Licensee Product where the operation of the Licensee’s Product on a Customer’s Server requires access to the Ephox Software on the Licensee’s Server. “Standalone Product” does not include Licensee Product provided in a Subscription Service application.
- “Product” means Software provided by Ephox or Licensee.
- “Related Entity” means a principal company or a subsidiary of the Licensee over which the principal company or the Licensee can exercise management control.
- “Release” means a version of the Licensed Software that is designated by the first 2 digits in the numbering nomenclature used by the Sub-Licensed Software version numbering. Any digits that follow the first 2 will designate the maintenance level of the particular release.
- “Subscription Service” means Software-as-a-Service that is an application that is provided in a hosted environment and provided to users via the Internet or a private network.
- “Server” means a physical server, a Virtual Machine, or an instance in the cloud with no more than 8 cores.
- Software” means (a) all the contents of the files with which this Agreement is provided, including but not limited to (i) Ephox or third party computer information or software and (ii) Documentation; and (b) upgrades, modified versions, major versions, additions, and copies of the Software, if any, licensed to Licensee by Ephox (collectively, “Updates”).
- “Successor Software Product” means any new version of Ephox software products distributed as a separate, renamed, or replacement product, or group of products, as designated by a change of version number, or a change in the name of software products, the major functionality of which is substantially similar to that contained in the Licensed Software, even if such product includes additional features, architecture and functionality not contained in the Licensed Software. Any software products sold separately from the Licensed Software products listed in the Licensee-Signed Quote are excluded from this definition.
- “Support Contact” means the Licensee employees that Licensee designates in accordance with Section 4.2.2.
- “Technical Support” or “Support” means reasonable technical support (as more specifically set forth in Section 4 attached hereto and incorporated herein) for the Licensed Software provided by Ephox to the Licensee.
- “Use” means to incorporate the Software into a Licensee Standalone Product and/or Subscription Service.
2. LICENSE GRANT
2.1. Licensed Software
If You have been Authorized to Use the Ephox Product in a Licensee Subscription Service, then this section 2.1.1 applies to You. Your authorization to use the Ephox Product in a Licensee Subscription Service is stated in the Licensee-Signed Quote.
Subject to the terms and conditions set forth in this Agreement, Ephox grants to Licensee (including its third party Developers) a non-exclusive, non-transferable, world-wide license, to integrate, market, use, copy and provide the Licensed Software and associated Documentation to Customers solely when included as part of the Licensee Subscription Service, provided that such Licensee Subscription Service contains significant additional functionality not incorporated in the Licensed Software. The right to use the Licensed Software shall cease upon the termination or expiration of this Agreement, or at the end of an Subscription Period if the Subscription is not renewed. Licensee’s Customers may not continue to use the Licensed Software as part of the Licensee Subscription Service after termination or expiration of this Agreement.
If You have been Authorized to Use the Ephox Product in a Licensee Standalone Product, then this section 2.1.2 applies to You. Your authorization to use the Ephox Product in a Licensee Standalone Product is stated in the Licensee-Signed Quote.
Subject to the terms and conditions set forth in this Agreement, Ephox grants to Licensee (including its third party Developers) a non-exclusive, non-transferable, world-wide license, to integrate, market and distribute the Licensed Software and associated Documentation to Customers solely when included as part of the Licensee Standalone Products, provided that such Licensee Standalone Products contain significant additional functionality not incorporated in the Licensed Software. The right to distribute or provide Updates or Releases of the Licensed Software shall cease upon the termination or expiration of this Agreement, or at the end of an Subscription Period if the Subscription is not renewed. Licensee’s Customers may continue to use the Licensed Software after termination of this Agreement subject to maintenance of Customer license requirements specified in Section 12 and Section 2.9 and including the survival clauses specified in Section 11.5.6.
2.2. Changes to Licensed Software
Ephox, in its sole discretion, may change the functionality and specifications of the Licensed Software or any portion of the Licensed Software at any time, and may discontinue the Licensed Software, create new versions of the Licensed Software, or introduce new products which may be competitive with the Licensed Software.
2.3. Demonstration and Evaluation Copies
Licensee may provide a reasonable number of demonstration or evaluation copies of the Licensed Software at no charge, together with demonstration or evaluation copies of its own Licensee Standalone Product or Subscription Service, to Customers, prospects and Licensee employees solely for demonstration or evaluation purposes.
2.4. Documentation License
Licensee may use, reproduce, modify and redistribute the Documentation together with the Licensed Software, provided that Licensee reproduces all Ephox proprietary legends on all copies of the Ephox Documentation or modifications thereof.
2.5. Delivery of Licensed Software
Ephox will make available to Licensee the Licensed Software for electronic download promptly upon execution of this Agreement.
2.6. Restrictions and Reservations
Except as necessary to exercise the rights expressly granted to Licensee under this Agreement, and except to the extent allowed by applicable law, Licensee shall not copy, rent, lease, lend, trade-in, create derivative works from, translate, reverse engineer, disassemble, decompile, or modify the Licensed Software, or any License Key used in connection with the Licensed Software, nor shall Licensee cause or permit any other person to do so. Ephox reserves all rights not expressly granted to Licensee under this Agreement.
Licensee shall not delete any proprietary notice of Ephox appearing anywhere in the Licensed Software or Documentation, nor shall Licensee cause or permit any other person to do so.
All trademarks, service marks, logos, and other marks used on Licensed Software or Documentation (“Ephox Marks”) are the property of Ephox (or its suppliers, as applicable) and Licensee obtains no rights in any Ephox Marks as a result of this Agreement. Licensee will not remove, nor permit any other person to remove, any Ephox Mark (or those of Ephox’s licensors) from any Licensee Product or Licensee Service. All goodwill associated with the use of any Ephox Mark shall vest solely in Ephox and Licensee shall not acquire any rights in any Ephox Mark as a result of the use thereof.
2.9. Customer Agreements
2.9.1. Subscription Service Customer Agreement
Licensee shall have the right to further sub-license the Licensed Software in a Licensee Subscription Service under a Customer Agreement having terms substantially similar or at least as protective of Ephox’s rights as the provisions of this Agreement and the following provisions as to the Licensed Software:
- (a) The Customer is granted a nonexclusive, nontransferable right to use the Licensed Software solely in connection with the business of the Customer.
- (b) The Customer may use the Licensed Software only in a Subscription Service provided by the Licensee.
- (c) The Customer shall not be provided any warranty with respect to the Licensed Software, and the Customer Agreement shall incorporate the disclaimer set forth in Section 8 but with no reference to any warranty being provided to the Customer.
- (d) Title to the Licensed Software remains with Ephox.
- (e) The Customer’s right to use Licensed Software will terminate if the Customer breaches any of the terms set out in the Customer Agreement and is unable to cure such breach within the cure period specified therein.
- (f) The obligations set forth in Section 12.2 of this Agreement as applied to Licensee Customers.
2.9.2. Standalone Product Customer Agreement
Licensee shall have the right to sublicense the Ephox Software in a Licensee Standalone Product under a Customer Agreement having terms substantially similar or at least as protective of Ephox’s rights as the provisions of this Agreement and the following provisions as to the Licensed Software:
- The Customer is granted a nonexclusive, nontransferable right to use the Licensed Software solely in connection with the business of the Customer, and not as a service bureau.
- The Customer shall not copy, manufacture, adapt, rent, lease, lend, trade-in, create derivative works from, translate, reverse engineer, disassemble, decompile, or modify the Licensed Software, nor shall the Customer take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management functionality) contained in the Licensed Software.
- The Customer shall not be provided any warranty with respect to the Licensed Software, and the Customer Agreement shall incorporate the disclaimer set forth in Section 8 but with no reference to any warranty being provided to the Customer.
- Title to the Licensed Software remains with Ephox or its suppliers.
- The Customer will not remove, obscure, or alter Ephox’s copyright notices, trademarks, or other proprietary rights notices affixed to, contained in, or accessed in conjunction with or through the Licensed Software.
- The Customer Agreement will terminate automatically if the Customer breaches any of its terms.
- The Customer Agreement will state that Ephox is an express third party beneficiary of the license as it pertains to the Licensed Software.
- The obligations set forth in Section 12.2 of this Agreement as applied to Licensee Customers.
Licensee shall enforce all such Customer Agreements, and Ephox shall be a designated third party beneficiary of any such Customer Agreement.
Licensee shall pay to Ephox or its designee all License Fees and/or other fees specified in the Licensee-Signed Quote. Failure to pay such fees shall constitute a material breach of this Agreement.
3.2 Payment and Terms of Sale
Ephox shall invoice Licensee in advance. Licensee shall pay all amounts due and payable to Ephox within thirty (30) days of an invoice issued by Ephox. Amounts not paid when due shall be subject to interest at the rate of one and one-half percent (1.5%) per month or, if less, the maximum rate permitted by law.
Licensee shall pay any and all sales, use and other taxes of any kind, including any GST, VAT and customs levies or charges. In connection therewith, Licensee hereby agrees to indemnify and hold harmless Ephox from and against the amount of any tax, interest and penalties (other than corporate income taxes payable by Ephox based on or due as a result of any amounts paid to Ephox hereunder) in the event that a given jurisdiction successfully asserts such tax in connection with the sale for the Licensee Standalone Product and/or Subscription Service covered by this Agreement.
Ephox reserves the right to audit Licensee’s use of the Licensed Software to confirm that Licensee is complying with the provisions of this Agreement. Ephox’s employees or representatives, including Ephox’s certified public accountants, may perform any such audit at any time, during Licensee’s normal business hours upon reasonable prior written notice and subject to Licensee’s then-current reasonable procedures regarding access and security. Licensee shall pay to Ephox any amount disclosed by the audit to be due and owing. Any such audit shall be at Ephox’s expense, but if such audit discloses an underpayment by Licensee of more than five percent (5%) for any year, Licensee shall reimburse Ephox for the cost of the audit.
Licensee shall make and maintain until one (1) year after the expiration or termination of this Agreement, complete and accurate records of: (a) the name and address of each Standalone Product and Subscription Service Customer; (b) a copy of each agreement with such Customers; and (c) the type and number of copies of Licensee Standalone Product made for internal use or distributed.
Ephox has the right to ask for, and Licensee shall provide reports with regards to the “Quantities and/or Units” listed on the Licensee-signed Quote with at least thirty (30) days minimum notice.
4.1.1 Entitlement to Support
You may or may not be entitled to Support Service or to apply new Releases. Your entitlement is specifically Authorized in the Licensee-Signed Quote. If you are not Authorized to receive Support or to apply new Releases this Section does not apply to You.
4.1.2 Provision of Support to Specifically Authorized Licensees
Ephox shall provide to Authorized Licensee all Releases of the Licensed Software and the Support Service described in this Section 4 so long as Licensee has paid all fees specified in the Licensee-Signed Quote. All Releases shall be deemed to constitute Licensed Software for the purposes of this Agreement.
4.1.3 Access to New Releases & Upgrades to Specifically Authorized Licensees
You may not be Authorized in the Licensee-Signed Quote to use the Ephox Support Service but may be Authorized to apply Releases and Upgrades of the Licensed Software. If Licensee is specifically Authorized in the Licensee-Signed Quote, and so long Licensee has has paid all fees specified in the Licensee-Signed Quote, Licensee may apply Releases and Upgrades.
4.2.1 Licensee’s Support Commitments
Licensee shall provide First Level Technical Support to Customers. “First Level Technical Support” means that Licensee will provide Technical Support during Customer’s normal business hours, directly to the Customer concerning general product information, use of the Service in accordance with the Documentation, configuration support and collection of relevant technical problem identification information, and will differentiate non-technical problems from technical problems. Licensee will defend, indemnify and hold harmless Ephox, and its directors, managers, shareholders, employees and agents, from and against any and all claims, demands, causes of action, damages, costs, expenses, penalties, losses and liabilities, arising out of or relating to any breach by Licensee of the terms of any support agreement between Licensee and any Customer.
Ephox shall exercise commercially reasonable efforts to provide Second Level Technical Support (“Second Level Technical Support“) to the Licensee, by a medium (e.g. by telephone or email) of Ephox’s choice, all as specified in the Licensee-Signed Quote, provided that Licensee is then current on all of its payments to Ephox. Ephox will provide a reasonable level of Support, delivered by a medium (e.g. by telephone or email) of Ephox’s choice, to Licensee’s Developers to support their initial integration and integration of Releases.
Ephox’s obligation to provide Second Level Technical Support is conditioned upon the following:
(a) Licensee makes reasonable efforts to solve the problem after consulting with Ephox;
(b) Licensee provides Ephox with sufficient information and resources to correct the problem either at Ephox’s offices or via remote access to Licensee’s site, as well as access to the personnel, hardware, and any additional software involved in discovering the problem;
(c) Licensee promptly installs all Updates; and
(d) Licensee procures, installs and maintains all equipment necessary to operate the Software.
This Agreement does not extend to the operation of third party software and Ephox will not provide Licensee with generic consultation, assistance, or advice regarding any third party software.
4.2.3 Special Conditions Relating to the Use of TinyMCE under the TinyMCE License with the Extended Support Offering
These special conditions apply to the use of the open source version of TinyMCE under the TinyMCE License with the Extended Support Offering:
- Licensee is entitled to apply Upgrades, Releases, new versions or bug fixes for the TinyMCE open source software provided by Ephox during the Subscription Period. In the event that the Subscription is not renewed the Licensee is not entitled under this Agreement to download, install or use Upgrades of the TinyMCE open source software; and
- Support will not be provided if the Licensed Software has been changed, modified or damaged. For Support to be provided you must be able to replicate the issue on a standard distributed build (i.e. one with no custom code modifications) provided from the TinyMCE.com website.
4.2.4 Support of Discontinued Versions and Features
4.2.5 Feedback and Repairs
Licensee shall use all commercially reasonable efforts to provide to Ephox information reasonably necessary (including, where appropriate, reproducible test cases and other diagnostic information) to diagnose and resolve any verifiable failure of the Licensed Software as Licensee may report to Ephox in writing, in order to enable the Licensed Software to perform substantially in accordance with the Documentation.
5. LICENSEE OBLIGATIONS
5.1 Ephox Notices
Licensee shall not remove, and shall maintain, in the Licensee Subscription Service or Licensee Standalone Product, all proprietary notices and notices of any third party license agreements provided by Ephox to Licensee.
5.2 Licensee Supervision
Licensee shall supervise and control the use of the Licensed Software and ensure that Licensee and its employees, subcontractors or agents who have authorized access to the Licensed Software are made aware of the terms of this Agreement.
5.3 Name Change
Each party shall notify the other in writing in the event of changes to the names of such party’s products associated with the Licensed Software.
Licensee will act as a reference for Ephox in connection with Ephox’s efforts to market its products, and to provide references as requested by analysts, members of the press, or potential licensees. Licensee will notify Ephox immediately if the Licensee believes that it is unable to give a strong, positive reference, and in such circumstance, Licensee will decline to provide the inquiring person or entity with any information.
Each party agrees not to identify, either expressly or by implication, the other party’s corporate affiliates or use any of their names, trademarks, trade names, service marks or other proprietary marks in any advertising, press releases, publicity matters or other promotional materials, except as set forth in this Agreement or with the other party’s prior written consent. Ephox and Licensee shall make such public announcement concerning the relationship established under this Agreement, at such time, as the parties mutually agree. After the date of public announcement of the parties’ relationship, and during the term of this Agreement, Ephox may identify Licensee as an Ephox Licensee on Ephox’s website, announcements and in Ephox’s product literature and Licensee may identify Ephox as a provider on Licensee’s website, announcements and in Licensee’s product literature. Except as described in this Section 6, the parties shall consult with each other before issuing any press releases or otherwise making any public statements with respect to this Agreement and the transactions contemplated hereby. Nothing in this Agreement shall be construed to grant either party any right, title, or interest in the name or logo of the other party beyond that granted in this Agreement.
7. WARRANTIES AND INDEMNIFICATION BY LICENSEE
Licensee shall not make any representations or warranties about the Service beyond those included in the Documentation or otherwise approved by Ephox in writing.
Licensee has not relied on any promises or representations of Ephox or any third party not expressly made in this Agreement.
Licensee has the full right, power, and authority to enter into and perform its obligations under this Agreement. There are no impediments known to Licensee that would prevent Licensee’s material compliance with all the terms of this Agreement.
Licensee shall defend, indemnify and hold harmless Ephox, its directors, managers, shareholders, employees and agents, from and against any and all claims, losses, damages, and other liability whatsoever associated with: (a) a breach of any of Licensee’s representations, warranties, or covenants contained in this Agreement; (b) any claims brought against Ephox as a result of Licensee’s acts or omissions, including without limitation any modification of the Licensed Software or Documentation; or (c) any agreement between Licensee and any third party including, without limitation, any Customer Agreement. In the event that Ephox wishes to participate in the defense of any such claim, Licensee shall allow Ephox to participate at Ephox’s own expense. To the extent that Ephox deems Licensee reasonably unable to vigorously defend any such claim, Ephox may assume the defense of the claim exclusively at Licensee’s expense.
Ephox warrants to Licensee that the Licensed Software will perform substantially in accordance with its Documentation for a period of ninety (90) days following the Effective Date. In the event of any breach of this warranty, Licensee’s sole and exclusive remedy are, at Ephox’s option, for Ephox to (a) modify the Licensed Software to enable it to operate in accordance with the warranty provided in this Section 8, (b) replace the Licensed Software with software that operates in accordance with the warranty provided in this Section 8, or (c) refund all unused amounts paid to Ephox by Licensee as depreciated on a straight-line sixty (60) month basis and terminate this Agreement without further liability.
Except as specifically set forth in this Agreement, Ephox disclaims all warranties, whether express or implied, concerning the Licensed Software, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, or any warranties arising out of conduct or industry practice.
8.3 Intellectual Property Infringement Indemnification
Ephox agrees, at its own expense, to defend or, at its option, to settle, any claim or action brought against Licensee to the extent it is based on a claim that the Licensed Software as used within the scope of this Agreement infringes or violates any United States patent, copyright, trademark, trade secret or other proprietary right of a third party, and Ephox will indemnify and hold Licensee harmless from and against any damages, costs and fees reasonably incurred (including reasonable attorneys’ fees) that are attributable to such claim or action and which are assessed against Licensee in a final judgment. Licensee agrees that Ephox shall be released from the foregoing obligation unless Licensee provides Ephox with: (a) prompt written notification of the claim or action; (b) sole control and authority over the defense or settlement thereof; and (c) all available information, assistance and authority to settle and/or defend any such claim or action. If any Licensed Software becomes, or in the opinion of Ephox is likely to become, the subject of an infringement claim or action, Ephox may at its sole option: (i) procure, at no cost to Licensee, the right to continue using the Licensed Software; (ii) replace or modify the Licensed Software to render it noninfringing, provided there is no material loss of functionality; or (iii) if, in Ephox’s reasonable opinion, neither (i) nor (ii) above are commercially feasible, terminate the license and refund all unused amounts paid to Ephox by Licensee for such Licensed Software as depreciated on a straight-line sixty (60) month basis. Ephox will have no liability under this Section 8.3 for any claim or action where: (A) such claim or action would have been avoided but for modifications of the Licensed Software, or portions thereof, made after delivery to Licensee; (B) such claim or action would have been avoided but for the combination or use of the Licensed Software, or portions thereof, with other products, processes or materials not supplied or specified in writing by Ephox; (C) Licensee continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (D) Licensee’s use of the Licensed Software is not strictly in accordance with the terms of this Agreement. Licensee will be liable for all damages, costs, expenses, settlements and attorneys’ fees related to any claim of infringement arising as a result of (A)-(D) above. The foregoing obligations constitute Ephox’s sole and exclusive obligations toward Licensee, and Licensee’s sole and exclusive remedy, with respect to any intellectual property claim or action brough against Licensee as aforesaid. Ephox shall have no other indemnification obligations of any kind under or in connection with this Agreement.
8.4 Limitation of Liability
Neither of Ephox (nor Ephox’s licensors) shall be liable under this Agreement for lost profits or for consequential, special, indirect, incidental or exemplary damages, regardless of the legal theory on which they are based, even if Ephox has been advised of the possibility of such damages. Ephox’s aggregate liability in connection with any claims arising out of or relating to this Agreement or the use of the Licensed Software shall not be more than the amount paid by Licensee to Ephox for the Licensed Software under the terms of this Agreement. This limit, which includes all costs and fees, shall apply to any and all claims regardless of the legal theory on which they are based. The foregoing limitations of liability will apply even if the above stated warranty fails of its essential purpose. Each party acknowledges that the fees set forth in this Agreement reflect the allocation of risk agreed upon and deemed reasonable by the parties and that they would not enter into this Agreement without these limitations of liability.
The Licensed Software is licensed, not sold. Ephox and its licensors hold all right, title, and interest, including all intellectual property rights, in and to the Licensed Software, subject only to any rights held by Ephox’s licensors or granted by Ephox. Ephox and Ephox’s licensors retain all right, title, and ownership to the Licensed Software and the Ephox Marks and no right, title, or interest in the Licensed Software or the Ephox Marks shall pass to Licensee except as may be specifically set forth in this Agreement. The Licensed Software (including, without limitation, any images, scripts, applets, animations, video, audio, music and text incorporated into the Software) as well as any accompanying written materials is owned by Ephox and is protected by United States copyright laws and international treaties, and contains confidential information and trade secrets.
For purposes of this Agreement, “Confidential Information” shall mean the source code of the Licensed Software, the terms of this Agreement, and the terms and all nonpublic information, whether in oral, written or other tangible form that the party disclosing the information (the “Discloser”) designates as being confidential or which, under the circumstances surrounding disclosure, the receiving party (the “Recipient”) knows or has reason to know should be treated as confidential.
Recipient agrees not to use, disseminate, or in any way disclose any Confidential Information of Discloser to any person, firm or business, except to the extent necessary for the performance of Recipient’s obligations hereunder, and for any other purpose Discloser may hereafter authorize in writing. Recipient agrees to treat all Confidential Information of Discloser with the same degree of care as Recipient accords to Recipient’s own Confidential Information, but in no case less than reasonable care. Recipient agrees to disclose Confidential Information of Discloser only to those of Recipient’s employees and independent contractors who need to know such information, and Recipient certifies that Recipient’s employees and independent contractors have previously agreed in writing, either as a condition to employment or in order to obtain the Confidential Information of Discloser, to be bound by terms and conditions substantially similar to those terms and conditions applicable to Recipient under this Agreement. Recipient shall immediately give notice to Discloser of any unauthorized use or disclosure of Discloser’s Confidential Information. Recipient agrees to assist Discloser in remedying any such unauthorized use or disclosure by Recipient or any of its employees or independent contractors of Discloser’s Confidential Information.
The obligations of Recipient under this Section 10 with respect to any portion of the Confidential Information of Discloser, shall not apply to such portion that Recipient can document: (a) was in the public domain at or subsequent to the time such portion was communicated to Recipient by Discloser through no fault of Recipient, or (b) was developed by employees or agents of Recipient independently of and without reference to any Confidential Information of Discloser. In addition, Ephox may disclose this Agreement and its terms to any other party otherwise under an obligation of confidentiality to Ephox. A disclosure of Confidential Information, either (x) in response to a valid order by a court or other governmental body or (y) otherwise required by law, shall not be considered to be a breach of this Agreement by Recipient or a waiver of confidentiality for other purposes; provided, however, that Recipient shall provide prompt prior written notice thereof to Discloser to enable Discloser to seek a protective order or otherwise prevent or limit such disclosure.
10.4 Specific Performance
The parties acknowledge that it will be impossible to measure in money the damage to the parties hereto of any failure to comply with the obligations of this Section 10, that every such restriction and obligation is material, and that in the event of any such failure, the parties will not have an adequate remedy at law or in damages. Therefore, each party consents to the issuance of an injunction or the enforcement of other equitable remedies against it at the suit of an aggrieved party, without bond or other security, to compel performance of all of the terms of this Section 10, and waives any defenses to an equitable remedy, including without limitation the defenses of failure of consideration, breach of any other provision of this Agreement, and availability of relief in damages. The parties in no way waive their rights to contest any action on the merits or pursue any other remedy that might be available to such party.
The term of this Agreement will begin on the Effective Date and will expire after the subscription period, or otherwise in accordance with this Section 11, unless the parties otherwise mutually agree. The Subscription Period will auto-renew and Subscription Fees will be payable provided either party does not advise termination of the Agreement at least thirty (30) days before the end of the current Subscription Period. Payment is in advance for the Subscription Period and is not refundable upon termination unless terminated for breach by Ephox.
11.2 Termination On Material Breach
This Agreement may be terminated by either party at any time in the event that (a) the other party is notified in writing that it is in material breach of the terms or conditions of this Agreement; and (b) such other party fails to remedy such breach within thirty (30) days following such notice or three (3) days following such notice if the breach is a failure by Licensee to pay any fee required under Section 3 of this Agreement.
11.3 Termination on Financial Difficulty
To the extent allowed by law, Ephox may terminate this Agreement effective immediately upon written notice to Licensee if Licensee (a) files a voluntary petition in bankruptcy or otherwise seeks protection under any law for the protection of debtors; (b) has a proceeding instituted against it under any bankruptcy law that is not dismissed within sixty (60) days; (c) is adjudged as bankrupt; (d) has a court assume jurisdiction of its assets under a reorganization act; (e) has a trustee or receiver appointed by a court for all or a substantial portion of its assets; (f) becomes insolvent; (g) suspends or ceases to do business; (h) makes an assignment of its assets for the benefit of its creditors; or (i) admits in writing its inability to pay its debts as they become due. In the event of Licensee’s bankruptcy, this Agreement shall be accepted or rejected within a reasonable time, but in no event in less than sixty (60) days from the filing of the bankruptcy petition.
Use of the Software by Licensee and Customers must cease upon termination of this Agreement.
11.5.2 Use of Software by Licensee and Customers in a Licensee Standalone Product
Licensee and related Entities of Licensee must cease all use of the Software immediately upon expiration or termination of this Agreement for any reason. Licensee may not distribute Updates to Customers. Customer Agreements (excluding those with a Related Entity of the Licensee) entered into before the expiration or termination of this Agreement shall continue in effect in accordance with the terms of such Customer Agreements.
All distribution rights and licenses granted to Licensee under this Agreement shall expire on expiration or termination of this Agreement for any reason. Licensee will cease using any Ephox Mark, and any material containing said marks, upon termination or expiration of this Agreement.
Upon termination or expiration of this Agreement for any reason, Licensee shall return or destroy all materials provided by Ephox during the term of this Agreement other than materials distributed to Customers. Licensee shall also provide Ephox with a letter certifying that Licensee has returned or destroyed such materials, and does not possess any copies of the Ephox Product, the Documentation, the Marks, or other materials of Ephox. Licensee may retain copies of the Licensed Software and Documentation as necessary solely for the purpose of enabling Licensee to meet Licensee’s support obligations to Licensee’s Customers, and shall return all such copies when no longer needed for such purpose.
Notwithstanding any other provision of this Agreement, if this Agreement is terminated for any reason or expires, the following provisions shall survive and continue according to their terms: The provisions of Sections 3.4, 3.5, 7-10, 11.5 and 12, and any other provisions which by their nature and purpose should be reasonably deemed to survive.
Unless expressly provided herein to the contrary, the rights and remedies of the parties provided in this Agreement shall not be exclusive and are in addition to any other rights and remedies provided at law or in equity.
11.6 No Termination Liability
Licensee expressly acknowledges that Ephox has not made to Licensee any representations as to the possible or expected duration of this Agreement, and Licensee further expressly acknowledges that upon the expiration or termination of this Agreement for any reason, Ephox shall have no liability to Licensee for expenditures by Licensee of time, effort, or money in connection with the performance of Licensee’s obligations under this Agreement or any activities of Licensee in furtherance of any sale or promotion of Licensee Subscription Service or Licensee Standalone Product. Licensee further expressly acknowledges that should Ephox terminate Licensee pursuant to this Section 11, Licensee may not have recouped Licensee’s initial costs of establishing a sales representative organization and of introducing, promoting the sale of and obtaining orders for the Licensee Subscription Service and Ephox shall not be liable to Licensee for any such costs.
11.7 Disclaimer of Termination Liability
Except as otherwise provided herein, neither party shall, by reason, or upon termination, of this Agreement, be liable to the other for compensation or damages on account of the loss of present or prospective profits or commissions on sales or anticipated sales, or expenditures, costs, investments or commitments made in connection therewith or in connection with the establishment, development or maintenance of the representation hereunder. The acceptance by Ephox of any order after the termination of this Agreement shall not be construed as a renewal or extension of this Agreement or as a waiver of termination.
Licensee shall comply with all laws applicable to Licensee in connection with the performance of its obligations and exercise of its rights under this Agreement.
12.2 US Export Restrictions
The Licensed Software is subject to certain export restrictions of the United States Government. If Licensee or Licensee’s Customers are (a) in a country to which export from the United States is restricted for anti-terrorism reasons, or a national of any such country, wherever located, (b) in a country to which the United States has embargoed or restricted the export of goods or services, or a national of any such country, wherever located, or (c) a person or entity who has been prohibited from participating in United States export transactions by any agency of the United States Government, then Licensee may not install, download, access, use, or license the Licensed Software. By entering into this Agreement, Licensee warrant and represent to Ephox that (1) Licensee do not match the criteria set forth in (a), (b), or (c) above, (2) that Licensee will not export or re-export the Licensed Software to any country, person, or entity subject to U.S. export restrictions, including those persons and entities that match the criteria set forth in (a), (b), or (c) above, and (3) that neither the United States Bureau of Industry and Security, nor any other U.S. federal agency, has suspended, revoked, or denied Licensee’s export privileges.
12.3 Commercial Policy Regarding International Transactions
Licensee agrees that it will not, in connection with this Agreement or its performance hereunder, directly or indirectly offer, pay, promise to pay or authorize the payment of any money or other consideration to any government official or to any person, while knowing or having reason to know that all or a portion of such money or other consideration will be offered, given, or promised, directly or indirectly, to a government official for the purpose of (i) influencing any act or decision of such government official, including a decision to fail to perform his or her official functions; or (ii) inducing such government official to use his or her influence with any government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, to assist the Licensee in obtaining or retaining business or directing business, to any other individual or entity. The term “government official” means any officer or employee of any government or any department, agency, instrumentality or wholly-owned corporation thereof, or any person acting in an official capacity for or on behalf of any such government or department, agency, instrumentality or wholly-owned corporation thereof, or any candidate for political office. Licensee shall notify Ephox immediately of any extortive solicitation, demand, or other request for anything of value, by or on behalf of any government official or employee of any government and directed to Licensee related to the Licensee Product or Licensee Service.
During the term of this Agreement and for one (1) year thereafter, Licensee shall not, and shall ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by Ephox during such period.
12.5 Choice of Law
The laws of the State of California, United States of America shall govern this Agreement, without reference to conflict of laws principles, and in no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods.
12.6 Entire Agreement
This Agreement, together with any Exhibits, constitutes the entire and complete agreement of the parties with respect to the terms hereof. Except as otherwise provided in this Agreement, no purchase order, other ordering document or any hand written or typewritten text that purports to modify or supplement the printed text of this Agreement shall add to or vary the terms of this Agreement unless signed by a duly authorized officer of each party in a written document specifically stating that it is amending this Agreement. No acceptance of any purchase order from Licensee, or delivery of any goods or services, shall constitute acceptance by Ephox of the terms of any purchase order or other document from Licensee. Except as otherwise provided in this Agreement, no additional, inconsistent, or conflicting clauses in any purchase order, release, or other written correspondence from either party, shall be deemed to be included in these terms and conditions and shall be of no effect, even if later in time than this form, unless the parties agree otherwise in a writing specifically referring to this form, specifically stating that such writing is modifying this form, and executed by authorized officers of each party. These terms and conditions supersede any usage of trade and control all course of dealing between Licensee and Ephox. This Agreement replaces and supersedes any prior written or verbal agreements, understandings, communications or representations.
Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed given and received on the earlier of when actually received or three (3) business days upon deposit with the United States Mail with delivery confirmation, postage prepaid, or (or for notices given across national boundaries, by Federal Express, DHL, or other comparable delivery service, delivery prepaid), or for notices sent within the continental United States, the next business day if sent by overnight Federal Express or other nationally recognized overnight courier, and addressed to the Chief Executive Officer or President of the party at the business address of the party as shown on the initial paragraph of this Agreement or to such other address as the party may request by written notice. When notice is required to be given within a specified time, the notice shall be timely given if it is deposited in the mail or with a courier or transmitted within the specified time, but time periods that begin with the delivery of the notice shall not begin to run until the notice is received or deemed to have been received as provided above. Each party shall make an ordinary, good faith effort to ensure that the person to be given notice actually receives the notice. A party that has failed to ensure that the other parties to this Agreement have a current address, fax number, telephone number, and electronic mail address for the party and if desired, the party’s attorney, for the purpose of giving notice waives any right to challenge the adequacy of any notice given in accordance with this Section.
If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect, and the clause held invalid shall be modified to effect the original intent of the parties, and convey the economic benefits originally intended to be conveyed.
Licensee may not assign this Agreement without the prior written consent of Ephox, which may be withheld in the exercise of Ephox’s sole discretion. Any prohibited assignment or sublicense shall be null and void.
The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future.
12.11 Force Majeure
Except for Licensee’s obligation to pay Ephox, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. Any deadline or time within which a party must perform under this Agreement shall automatically be extended upon the occurrence of any such cause for a period equal to the time lost because of such event, but not for more than ninety (90) days. If such cause continues for more than ninety (90) days, then the party not otherwise in breach of contract as a result of the cause, or either party if both are otherwise in breach of contract as a result of the cause, may terminate this Agreement upon written notice to the other.
12.12 Amounts Not in Dispute
Each party shall promptly pay the entire portion of all amounts that the party does not reasonably and in good faith dispute, as reflected in a reasonably detailed notice in writing promptly provided to the other party.
12.13 Construction of Agreement
The parties have negotiated the terms of this Agreement, and no provision of this Agreement shall be construed against either party as the drafter thereof.
This Agreement may be executed in counterparts, each of which will be deemed an original and collectively will constitute one instrument.
12.15 Relationship of Parties
Ephox and Licensee are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Ephox and Licensee. Neither Ephox nor Licensee will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
12.16 Amendments, Waivers, and Consents
The parties shall not amend or waive any provision of this Agreement except in a writing signed by the parties. No waiver or consent shall be binding except in a writing signed by the party making the waiver or giving the consent. No course of dealing between the parties shall constitute an amendment of this Agreement.
© Ephox 2016
Version: 2016 v20160519 : Friday, August 5, 2016
Ephox Technical Support Conditions
- EPHOX TECHNICAL SUPPORT SERVICE LEVELS
Ephox undertakes to remedy problems in accordance with the following Service Levels.
- Ephox Technical Support Service Level – Problem Category 1:
- Response times within the Service Hours: 4 hours
- Workaround times within the Service Hour: 24 hours
- Ephox Technical Support Service Level – Problem Category 2:
- Response times within the Service Hours: 8 hours
- Workaround times within the Service Hour: 36 hours
- Ephox Technical Support Service Level – Problem Category 3:
- Response times within the Service Hours: 24 hours
- Workaround times within the Service Hours: 48 hours
- SERVICE HOURS
Ephox’s Service Hours:
- California, US office: 9:00 AM to 5:00 PM Monday to Friday local time excluding US public holidays.
- Queensland, Australia office: 7:30 AM to 3:30 PM Monday to Friday local time excluding Queensland public holidays
Office contact information available at http://www.ephox.com/aboutus/offices.html.
- PROBLEM CATEGORIES
- Category 1:
Effective use (commercially tenable use) is not possible due to such malfunctions, or is unreasonably restricted or impaired.
- Category 2:
Effective use of the software is not gravely impaired, so that working with the software according to the specifications stipulated (software documentation) is possible.
- Category 3:
Effective use is not restricted due to this malfunction.
The categorization of these malfunctions into one of the malfunction classes is advised at the time that the malfunction is reported.
- REPORTING OF PROBLEMS
All problems are to be reported by a Licensee representative through the Ephox technical support form on the Ephox website at: http://support.ephox.com. Ephox’s response to support requests submitted by email will be delayed.
After submission include the Ephox Technical Support case number that was advised by email in response to the initial reporting.
- APPLICATION TO EPHOX PRODUCTS
Ephox technical support for any Release of the Licensed Software will end he later of either: (a) six (6) months after the Release has been superseded; or (b) eighteen (18) months after the Release was made available. If a release is not superseded, then it will be supported until such time as Ephox declares end of support for the product. The announcement will be made via the Ephox website and will occur at a minimum of six (6) months before the last day of support.
Downloadable version of this Agreement:
Ephox OEM agreement 2016 v20160527 distribution version (PDF)