(Capitalized terms used and not defined herein have the meanings given them by the contract between the parties that incorporates these definitions and boiler-plate provisions.)
A. GENERALLY-APPLICABLE DEFINITIONS
1. “Agreement” means the main document referencing these definitions and boiler plate provisions, all additional documents and terms and conditions incorporated in such main document, and all Order Forms (as defined herein) formed under such main document.
2. “Application” means the software applications set forth on the application Order Form(s) or otherwise made available by PDF for use by Licensee under the terms of the Agreement, including software applications licensed, if any, by PDF from third parties.
3. “Authorized Contractor” means a third-party contractor company providing services to Licensee that require access to or use of the Software (otherwise in compliance with this Agreement) to perform data/tool integration services for Licensee, provide that such company (A) is not a competitor or potential competitor of PDF (as listed in PDF’s public filings with the Securities and Exchange Commission including when such company continues to operate within or as an affiliate of a non-company that acquires any such company or such company’s assets); (B) has entered into a written agreement with Licensee or PDF requiring such company to protect the confidentiality of the Licensed Materials and prohibiting such contractor from the unauthorized use or disclosure of the Licensed Materials to at least the same extent as the provisions of this Agreement; and, (C) shall be deemed an Authorized Contractor only for so long as such company remains engaged by Licensee and has a need to have access to or use of the Licensed Materials to perform services for Licensee (otherwise in compliance with the Agreement).
4. “Change of Control” means the sale of all or substantially all the assets of a Party; any merger, consolidation or acquisition of a Party with, by or into another corporation, entity or person; or any change in the ownership of more than fifty percent (50%) of the voting capital stock of a Party in one or more related transactions.
5. “Customer Page” means the page of the Dataconductor.com Website through which Licensee shall access the Applications.
6. “DataConductor.com Website” means the site on the World Wide Web (the “Web”) located at Universal Resource Locator http://www.dataconductor.com through which PDF shall provide the Service to Licensee under the terms of the Agreement.
7. “Designated Site” means Licensee’s facility at the address, or the geographical region, set forth on an Order Form. In the case of a fabrication facility, the “Designated Site” is the Licensee’s building or buildings that have one manufacturing execution system (MES).
8. “Designated Tool” means, with respect to PDF’s tool-specific software, the original manufacturing tool on which such software was installed, unless a dongle is provided by PDF, in which case, any manufacturing tool on which a valid dongle is currently installed.
9. “Documentation” means the user operating manuals and specifications in tangible, electronic or other form for the Software, if and to the extent that PDF makes the same generally available to its Licensees of such Software either directly or through the http://www.dataconductor.com website.
10. “Error” means a material failure of the Software to operate in accordance with the functional specifications for the Software set forth in the applicable Documentation.
11. “EVAL Software” means PDF software programs, or additional users of the Software, used for Licensee’s evaluation of such programs or by such users for potential fee-bearing license.
12. “Export-Controlled Information” means the Software, Documentation and other technical information that PDF may provide under the Agreement and the direct product of such technical information.
13. “Hosted Software” means PDF Software specified in an Order Form and hosted either by PDF or by an approved 3rd party provider.
14. “Improvement” means, with respect to an item of Software, an enhancement, modification, addition, add-on module, or other code meant to improve the functionality or usability of such Software. Without limiting the generality of the foregoing, “Improvements” include loading scripts, pre-processors, and the proprietary schema for related databases.
15. “License Term” means the term of the License granted to Licensee as specified in an Order Form.
16. “Licensed Materials” means the Software, Documentation and all third-party programs included or distributed therewith.
17. “Licensed User” means any individual that is an employee of Licensee and works exclusively for the Licensee, provided that such individual has entered into an enforceable agreement with Licensee requiring such individual to protect the confidentiality of the Software and Documentation, and prohibiting such individual from the unauthorized use or disclosure of the Software and Documentation, to at least the same extent as the provisions of any applicable confidentiality agreement between PDF and Licensee, and shall be deemed a Licensed User only for so long as such individual remains an employee of Licensee and has a “need to know” for the purposes of exercising the rights granted to Licensee’s by PDF.
18. “Limited Maintenance & Support Services” or “LMS” means those Critical Error correction and technical support services only (rendered via telephone or email) that are otherwise described in PDF’s standard M&S terms and conditions available on PDF’s web site (as updated from time to time), excluding, in any event, enhancements, updates, upgrades, and other maintenance service; provided that PDF may (in its sole discretion) achieve the Error Correction contemplated herein (to any module) by delivering a more recent version than that licensed to Licensee, which has resolved such Error, in which event no additional license is granted by PDF to any enhancements or Improvements to functionality previously licensed other than as directly necessary to implement the intended Error Correction.
19. “M&S Services” means those Error correction, update, and technical user support services specified in PDF’s standard M&S terms and conditions at www.pdf.com/support. In any case, M&S Services does not include any on-site services.
20. “Named User” means a Licensed User who has been issued a unique User I.D. to access the Hosted Software.
21. “Order Form” means an initial order attached as an Exhibit I to the Agreement, if any, and each validly-issued PDF quote if referenced (by PDF Order quotation Number) on Licensee’s non-cancelable, duly-authorized purchase order, delivered to PDF and accepted by PDF.
22. “Service” mean the provision of the Web-based hosting of the Applications and User Information in accordance with the terms of the Agreement.
23. “Software” means all PDF software whether (1) specified in an Order Form or (2) made available by PDF to Licensee from time-to-time during the term of the Agreement on the terms set forth in PDF’s valid license file for such software, for use solely for Licensee’s evaluation and decision whether to purchase additional, non-evaluation licenses to such software products (i.e. Eval Software), in each case, delivered by PDF to Licensee and including Improvements and Updates or bug fixes thereto.
24. “User Information” means personally identifiable data entered by and collected from Named Users while accessing the Applications and hosted by PDF or its third party subcontractor.
25. “Taxes” mean applicable sales, use, withholding, value-added (VAT) or other tax, governmental duties, penalties or other charges (excluding any tax based solely on PDF’s net income).
B. LEGAL BOILER-PLATE PROVISIONS
1. Notifications. Licensee shall not remove, or permit the removal, of any copyright or trademark notices in the Licensed Materials. Each copy of the Licensed Materials that Licensee is permitted to make hereunder must contain the same proprietary or copyright notices that appear on the Licensed Materials as furnished to Licensee by PDF.
2. Ownership. Notwithstanding anything to the contrary, Licensee acknowledges that, as between PDF and Licensee, PDF has and shall retain all right, title and interest (including, without limitation, all intellectual property rights) in and to the Software, Documentation, EVAL Software, and all works resulting from any services performed by PDF hereunder, regardless of whether such works were initiated or implemented by PDF or Licensee or whether created specifically for Customer’s use of the Software, the EVAL Software, or otherwise. All third party licensors and suppliers retain all right, title and interest in third party software and all copies thereof, including all copyright and other intellectual property rights.
3. Purchase Orders. Unless a different schedule is set forth in an Order Form, in which case Licensee shall issue and deliver to PDF purchase order(s) according to such schedule, Licensee shall issue and deliver to PDF, in a timely manner after entering into the Agreement, the purchase order(s) sufficient to cover all amounts due to PDF under the Agreement, including for actual travel and other out-of-pocket expenses incurred by PDF in connection with any services ordered by Customer. Notwithstanding anything to the contrary, Customer’s issuance of a purchase order for any product or service set forth on a valid PDF quote evidences Customer’s agreement to purchase all products and services set forth on such quote; in the event the Parties agree to reduce such obligation in any way, such agreement is only valid if PDF notes such on Customer’s purchase order and signs such notation. Purchase orders, even if accepted by PDF, are not permitted to modify or vary the terms of the Agreement. Notwithstanding anything to the contrary in any purchase order and PDF’s acceptance or signature of acceptance of such purchase order, no additional or different terms and conditions included on any purchase order shall be accepted by, or binding on, the Parties without a valid amendment of the Agreement, and all such terms are hereby rejected by the Parties.
4. Invoicing. PDF will submit invoices for the Software and services set forth on each Order Form with the timing or frequency set forth thereon or, if not included on the Order Form, upon initial delivery of licenses for Software and the start of Services. All invoices are due and payable as set forth on the applicable Order Form or, if not included on the Order Form, Net 60 from invoice date. Licensee shall make all payments under the Agreement by wire transfer to PDF’s bank account in United States Dollars. Amounts not paid in accordance herewith shall be subject to a late charge equal to 1.5% per month (or the maximum allowed by applicable law, whichever is less). Without prejudice to other remedies available, PDF reserves the right to suspend performance and delivery of services (including, without limitation, M&S Services) until any payment delinquency is corrected. If Licensee is required to pay any Taxes, Licensee shall pay such Taxes with no reduction or offset in the invoiced amount actually remitted to PDF under the Agreement. If the event applicable law requires PDF to initially pay any Taxes related to the Agreement, PDF will add such Taxes to its invoice. In the event applicable law imposes a VAT and requires or allows Licensee to self-asses such VAT, Licensee will bear the obligation to account for VAT and will self-assess VAT under the reverse-charge mechanism on all sums due to PDF. Consistent with the above allocation of obligations as applicable under the Agreement, the Parties will exercise commercially reasonable cooperation in (i) effecting the intent of this paragraph, (ii) communicating with tax authorities as appropriate, and (iii) obtaining for, or providing to, the applicable Party government certificates, receipts or other documents as appropriate.
5. Lapsed M&S Services. In the event that Licensee chooses not to renew M&S Services upon expiration of the then-current M&S Services period and thereafter desires to reinstate M&S Services, such reinstatement will require payment of all previously unpaid M&S Services fees through and including the reinstatement period, and payment of an additional reinstatement fee equal to 33% of such previously unpaid M&S Services fees. Reinstatement shall entitle Licensee to delivery of all Updates and other M&S Services through the date of such reinstatement. Licensee shall have no right to receive, and PDF shall have no obligation to provide to Licensee, any M&S Services during any period for which Customer is not current on M&S Services fees. Notwithstanding anything to the contrary or the general provision of such services to other licensees, PDF shall have the right hereunder, without any liability or penalty, to refuse to renew any lapsed M&S Services.
6. Remedies. Licensee recognizes and agrees that in the event of a breach or threatened breach by Licensee of the Agreement, PDF may suffer irreparable harm for which monetary damages alone would not adequately compensate PDF and, therefore, agrees that, in addition to all other remedies available to PDF at law, in equity, by agreement or otherwise, PDF is entitled to immediate injunctive or other equitable relief for the enforcement of any such obligation without the necessity of posting any bond or other security. Nothing in this provision is intended or shall be interpreted to replace, waive, lessen or otherwise alter any obligations of the Parties set forth elsewhere in the Agreement.
7. Export Regulation. Licensee acknowledges that certain of the software, technology, services and/or other items that PDF may make available to Licensee may be subject to export control and sanctions laws and regulations of the United States (collectively “ECL”), including but not limited to the Export Administration Regulations, 15 C.F.R. Parts 730-774 (EAR) and the sanctions administered by the Office of Foreign Assets Control (OFAC) (items subject to the ECL collectively “Items”). Notwithstanding anything to the contrary, availability of and PDF obligation to provide Items are subject to the ECL. Licensee confirms that it will comply with the ECL with respect to the Items and, without limiting the generality of the foregoing, that it will not without a required U.S. government export license or other U.S. government authorization: (A) export, re-export, transfer or provide Items to any country or region that is subject to a United States Government export embargo (currently: North Korea, Cuba, Iran, Sudan, Syria and the Crimea Region), or to any entity or person located in any such embargoed country or region; (B) export, re-export, transfer or provide Items to any entity or person on a U.S. government list of prohibited or restricted parties or for which a U.S. export license would be required; or (C) export, re-export, transfer in-country, use, or allow any third party to use, any of the Items in any activities related to: (i) the development, production, storing or testing of nuclear, chemical or biological weapons or missiles, (ii) any other military end-use, or (iii) any military end-user. The Licensee certifies that it does not develop, produce, maintain, or use military items, and is not a military end-user within the meaning of 15 C.F.R. § 744.21(f)-(g) of the EAR. Licensee shall be responsible for determining whether any approvals, authorizations, consents or licenses are required from the government of Licensee’s home country for the disclosure to PDF of Licensee’s technical information under the Agreement, and Licensee will not disclose such information until Licensee obtains such authorization.
8. Storage. Should Customer order and pay for storage capacity related to the use of the Applications (“Storage”) via Order Form, then during applicable Term for such Storage, PDF will provide regular storage utilization notifications by email to Customer’s designated admin user when storage usage exceeds 90% of the purchased Storage. In the event Customer’s actual storage exceeds 100% of purchased Storage, PDF shall invoice and Customer shall pay for any additional storage at the same per GB rate under which Customer originally purchased the Storage, in 50 GB increments, due immediately and payable within 30 days of the date of issuance of any such invoice. PDF reserves the right to block any further data loading if Customer does not make timely payment of such invoice. Customer may also purchase via Order Form any other services provided by PDF related to the Applications (e.g., installation and training) at additional fees set forth on a future PDF quotation upon Customer’s request. PDF shall back up all Customer data on the purchased Storage at the times designated on PDF’s Software Product Support terms available at www.pdf.com/support, and Customer acknowledges and agrees that the Applications will be unavailable during this and other schedule time (collectively, “Scheduled Downtime”), as well as during unscheduled windows of unavailability “Unscheduled Downtime” that may be also indicated on such site.
9. Logs and Verification. Upon PDF’s request, Licensee shall provide PDF with quarterly automated logs of Software usage to the extent any such data or reports are available through the Software. Upon reasonable notice to Licensee and no more than once per year (except upon specific cause), PDF and its representatives, at PDF’s expense, shall have a right to review Licensee’s use of the Software to verify Licensee’s compliance with the terms and conditions of the Agreement, and Licensee will provide PDF and its representatives with access to such facilities, equipment, data, documentation, logs, records, reports and other information and materials (whether tangible or intangible) as PDF or its representatives may reasonably request as necessary for such review.
10. Audit Rights. During the term of the Agreement and for three (3) years after termination or expiration, both parties will maintain complete records of the number of Named Users, storage allocated and any other information reasonably required to calculate and track the fees and services to be provided hereunder. Upon reasonable notice to the other party, either party may audit the applicable records and accounts of the other during that party’s normal business hours and in such a manner as to avoid unreasonable interference with that party’s business operations. The auditing party shall bear costs and expenses associated with the exercise of its right to audit except that in the event of an underpayment or lapse of services of more than ten percent (10%) of the amount due for the period audited, the audited party shall pay all costs associated with such audit. In the event that either party determines that the other party has underpaid any payment or not provided the services due under this Agreement, the party shall notify the other in writing of the alleged discrepancy. If there has been a shortfall, such shortfall shall be due and payable (plus interest at the lesser of one and one-half percent (1.5 %) per month or the highest rate permitted by law applied until full payment is made by Customer) within thirty (30) days of such shortfall.
11. Independent Contractors. PDF and Licensee shall perform their obligations under the Agreement as independent contractors, and nothing contained in the Agreement shall be construed to create or imply a joint venture, partnership, principal-agent or employment relationship between the Parties. Neither Party shall take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of the other Party and shall have no power or authority to bind the other Party to assume or create any obligation or responsibility express or implied on the other Party’s behalf or in its name, nor shall such Party represent to any one that it has such power or authority.
12. Non-Solicit. During the term of the Agreement and, in the event of termination, for one year following such termination, Licensee agrees not to solicit, canvass, induce or encourage directly or indirectly any employee or contractor of PDF to leave the employment of PDF or, in the case of a contractor, to contract directly with Licensee to provide similar services with respect to the Software.
13. Discontinued Use. Upon expiration of any term-based License or any termination of the Agreement, Licensee shall: (i) immediately discontinue use of the affected Licensed Materials; (ii) promptly return to PDF, at Licensee’s expense, all tangible copies of the affected Licensed Materials; (iii) promptly remove, permanently delete and otherwise destroy all electronic copies of the affected Licensed Materials; and, (iv), if requested in writing by PDF, execute and deliver to PDF within five (5) business days of such request written certification of its compliance with the foregoing.
14. Effect of Termination. Termination of this Agreement by either Party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either Party from any liability for breach of such Party’s obligations under this Agreement. Neither Party shall be liable to the other Party for damages of any kind solely as a result of terminating this Agreement, and termination of this Agreement by a Party shall be without prejudice to any other right or remedy of such Party under this Agreement or applicable law.
15. Entire Agreement. The Agreement contains the entire agreement between the Parties with respect to the subject matter covered therein and shall supersede any and all prior and contemporaneous communications, representations, agreements and/or undertakings, either verbal or written, between the Parties in respect of the said subject matter.
16. Amendment of Incorporated Terms. Terms and conditions located and maintained on PDF’s web site may be updated, including by revisions, additions or deletion, from time to time in PDF’s sole discretion. Licensee is solely responsible for periodically checking for updates. For the avoidance of doubt, PDF’s signature indicating acceptance of a purchase order does not, and shall not be construed to, constitute an amendment of the Agreement.
17. Severability and Limitations of Actions. In the event that any provision of the Agreement or the application thereof to any person or in any circumstances shall be determined to be invalid, unlawful, or unenforceable to any extent, the remainder of the Agreement and its application to other persons shall not be affected thereby, and the remaining provisions of the Agreement shall continue to be valid and may be enforced to the fullest extent permitted by law and the Parties agree in such event to substitute forthwith the invalid, unlawful or unenforceable provision by such effective provision as will most closely correspond with the legal and economic contents of the provision(s) so voided.
18. Notices. All formal notices and other communications required or permitted under the Agreement shall be in writing and shall be mailed by certified or registered mail, postage prepaid, delivered either by hand or by messenger, or transmitted by e-mail or fax to the address on the signature page of this Agreement, or at such other address as either Party shall have furnished to the other in writing. All such notices and other written communications shall be effective (i) if mailed, seven (7) days after mailing, (ii) if delivered, upon delivery, or (iii) if e-mailed or faxed, within one (1) business day after transmission, provided that the notifying Party has written verification of receipt.
19. Waiver. The waiver by any Party of a breach or default by the other Party of any provision of the Agreement shall not be construed as a waiver by such Party of any succeeding breach or default by the other Party in the same or other provision, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any such right or remedy.
20. Assignment. Licensee shall not assign, delegate or otherwise transfer (whether voluntarily, by operation of law or otherwise) the Agreement, or any of its rights or obligations under the Agreement, without the prior written consent of PDF. A Change of Control shall be deemed an assignment by operation of law for the purposes of this provision. Any attempted or purported assignment, delegation or other transfer not in conformance with this Section 18. shall be void and have no effect. Subject to the foregoing, the Agreement shall be binding on the Parties’ successors and assigns.
21. Force Majeure. Except with respect to the Parties’ payment obligations, neither Party shall be responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, earthquakes, floods, or other acts of God or severe weather conditions, by war, terrorism or other violence or acts a public enemy, by strikes or other labor disputes, by laws, orders, proclamations, regulations, ordinances, demands, or requirements of any governmental authority, or by any other cause beyond the reasonable control of such Party.
22. GPL. Licensee acknowledges and agrees that certain modules distributed together with the Software may be available pursuant to the General Public License (“GPL”). The Agreement does not replace or otherwise amend any of Licensee’s rights or obligations pursuant to the GPL with respect to any use, distribution, or sublicensing of any such modules.
23. Attorneys’ Fees. If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to the Agreement or the breach hereof, the prevailing Party in any final judgment or arbitration award, or the non-dismissed Party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.
24. Language. Any action brought under the Agreement shall be conducted in the English language.
25. Counterparts. The Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
C. THIRD-PARTY SPECIFIC LICENSE TERMS
Licensee agrees to comply with the following additional terms and conditions in its use of Third-Party Software,. For the purpose of this Agreement, “Third-Party Software” means those certain software programs, libraries, databases, etc., delivered by PDF in conjunction with (or embedded in) the Software.
TERMS AND CONDITIONS APPLICABLE TO ALL THIRD-PARTY SOFTWARE:
1. Licensee shall only use Third Party Software for Licensee’s internal business operation, and only in conjunction with the Software. Licensee shall not use the Third Party Software as essential equipment in the operation of any nuclear facility, aircraft navigation or communication systems or air traffic control machines, or any other use in which failure of software could lead to death, personal injury or severe physical or environmental damage.
2. Licensee shall only allow access to the Third Party Software to that number of named or concurrent users set forth with respect to the Third Party Software, for which Licensor already made the applicable payments.
3. To the extent applicable, the Third Party Software shall not be accessed by a person who is not an employee of the Licensee, or an Authorized Contractor.
4. Licensee shall only make that number of copies of the Third Party Software that is sufficient for the licensed use and one copy of each program media for archival purposes, unless Licensee receives directly from such Third Party Software owner prior approval for additional copies. All such copies of any part of the Third Party Software made by the Licensee under this Section shall include the proprietary rights notice appropriate to maintain such third party owner’s right in such copy. This obligation applies to copies, including without limitation to partial, merged, modified, archival and back-up copies.
5. Licensee is prohibited directly or indirectly from (a) assigning, giving, or transferring the Third Party Software and/or any services ordered or an interest in them to another individual or entity, including, without limitation, any affiliate or subsidiary of Licensee (in the event Licensee grants a security interest in the Third Party Software and/or any services, the secured party has no right to use or transfer the Third-Party Software and/or any services); (b) using the Third Party Software for rental, timesharing, providing subscription services, hosting or outsourcing; (c) removing, modifying or combining any Third Party Software markings or any notice of the third party owner’s (or its licensor’s) proprietary rights; (d) making the Third Party Software available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted by the Third Party Software owner); and (e) passing title of the Third Party Software to any other individual or entity.
6. Licensee shall not reverse engineer (unless required by law for interoperability), disassemble, or decompile the Third Party Software. The foregoing prohibition includes but is not limited to review of data structures or similar materials produced by the Third Party Software.
7. Licensee shall not to remove any proprietary, copyright, trade secret or warning legend from any Third Party Software, related documentation, or copies thereof.
8. Licensee shall, upon any termination or expiration of the Agreement, discontinue all use and (i) destroy and certify such destruction; or (ii) return to PDF all copies of Third Party Software and related documentation.
9. Licensee shall not publish any results of benchmark tests run on the Third Party Software.
10. Each Third Party Software owner (or its licensor) retain all ownership and intellectual property rights to the Third Party Software and related documentation provided by such third party (including through PDF). All modifications, enhancement or changes to products and related materials are and shall remain the property of such Third Party Software owner (or its licensor) without regard to the origin of such modifications, enhancements or changes. Licensee will not challenge ownership or rights in and to the Third Party Software and related materials, including without limitations all copyrights and other proprietary rights.
11. Third-party technology that may be appropriate or necessary for use with the Third Party Software is specified in the documentation or is otherwise notified by Licensor. Such third-party technology is licensed, if at all, to Licensee under the terms of a separate agreement and not under the terms of this Agreement.
12. Licensee agrees that Licensor shall have the right to (a) audit Licensee’s use of the Third Party Software and report the audit results to such Third Party Software owner as applicable, or (b) to assign such audit right to the Third Party Software owner (or its licensor) (in the event of any such assignment, neither Licensor nor Third Party Software owner (or its licensor) shall be responsible for any of Licensee’s costs incurred in cooperating with such audit). Licensee agrees to provide reasonable assistance and access to information in the course of such audit.
13. Licensee acknowledges and agrees that Third Party Software owner (and its licensor, if applicable) is not required to perform any obligation or incur any liability under the Agreement.
14. Licensee acknowledges that it has not relied on the future availability of any Third Party Software programs or services in entering into its payment obligations under this Agreement.
15. Licensee acknowledges and agrees that the Uniform Computer Information Transactions Act is excluded from application to this Agreement.
16. Each Third Party Software owner (and licensors thereof, if applicable) disclaims (to the fullest extent permitted by applicable law) such owner’s liability to Licensee for (a) any damages, whether direct, indirect, incidental, special, punitive or consequential, or (b) any loss of profits, revenue, data or data use, arising from the use of the Third Party Software.
17. Each Third Party Software owner (and licensors thereof, if applicable) specifically makes no representation or warranties regarding such Third Party Software.
18. Licensee agrees that each Third Party Software and related documentation is such Third Party Software owner’s Confidential Information and shall not be used or disclosed to any other party other than as allowed under the Agreement.
19. Licensee agrees to promptly notify Licensor and Third Party Software owner, if it believes or has been made aware that there has been an infringement or attempted infringement of any of Licensor’s or such owner’s proprietary marks and fully cooperate with Licensor and such owner against such claim.
20. Licensee acknowledges and agrees that Third Party Software owner (and its licensors, if applicable) is a designated (intended) third-party beneficiary of the Agreement. Licensee acknowledges and agrees that Licensor may provide the Third Party Software owner with a copy of the Agreement, additional agreements, including any addenda or amendments thereto, and any ordering documents or purchase agreements between Licensor and Licensee related to the Third Party Software, with any pricing information or any other information reasonably deemed confidential or proprietary removed. Without limiting the generality of the foregoing, Licensor may provide such owner information related to the Third Party Software and/or any services provided to Licensee, including but not limited to, Licensee’s name, the Third Party Software and/or any services provided to Licensee, the number of permitted users, the license levels, the license grant to Licensee, any definitions related to licensing metrics, the date of Licensee’s order, and any other information reasonably requested by such owner.
ADDITIONAL TERMS AND CONDITIONS SPECIFIC FOR ORACLE® PROGRAMS:
1. Third-Party Programs documentation is available online at http://partner.oracle.com.
2. If the Licensee does not purchase technical support from Licensor for the Third-Party Programs, then Licensor shall have no obligation to provide such support to Licensee. Licensee may choose to purchase support services for the Third-Party Programs directly from Oracle, subject to the following terms and conditions:
a. In order to avoid reinstatement fees, Licensee must purchase support services from Oracle at the time Licensor distributes its Software to Licensee.
b. Licensee will be required to accept the terms of the then-current, standard Oracle License and Services Agreement in conjunction with any order for Oracle support services. Support services provided by Oracle directly to Licensee will be in accordance with Oracle’s Technical Support Policies in effect at the time the services are provided.
c. The fees for support purchased by Licensee from Oracle shall be based on the list price found on Oracle’s global price list for technical support for full use licenses of the Software, less the Oracle’s standard E-Business customer discount (no other discounts shall apply). The price will be based upon the price list that was in place on the actual date the license was purchased from Licensor.
d. Purchasing support directly from Oracle and paying technical support fees equal to technical support pricing for full use licenses without an application specific restriction does not entitle Licensee to full use rights for the Software licenses being supported. Oracle’s standard policies for license upgrades must be followed if Licensee requires a full use license.