You are entering to this Agreement as of today with S3 Web Technologies, LLC (S3).  In this Agreement, you will be referred to as LICENSEE.  When referring to both you and S3 as a collective, the term, “The Parties”, may be used.

BACKGROUND

S3 is in the business of providing computer software solutions and has developed their own Web Application management software, Naos Framework.  LICENSEE is in need of and desires to license Naos Framework for LICENSEE’S commercial use.

DEFINITIONS

For the purposes of this Agreement, the Parties agree that the following terms have these meanings:

"Non-Protected Information" means any information that is already known to The Parties prior to this Agreement, any information that is already public or becomes so during the course of this Agreement through no fault of either party; and any information received from a 3rd party that is not related The Parties of this Agreement.

"Confidential Information" means any information or communication in any form, whether verbal, written, graphical, or electronic, including but not limited to, data, documents, processes or methods, drawings or designs, computer programs, formulas, customer lists, vendor lists, business plans, and financial information, as disclosed between The Parties for the purpose of this Agreement, EXCLUDING any Non-Protected Information.

"Open Source Software" means any software program, whose source code is made available for use and modification as users or other developers see fit, and which may resultantly be the collaborative work of many different developers.

"Technical Support" means any assistance provided by S3 to LICENSEE with regard to the Naos Framework product, including, but not limited to, installation, configuration, or use of Naos Framework.

“Installed System” means a system on which LICENSEE installs or executes all or a portion of the Naos Framework product, including, but not limited to a server, workstation, virtual machine, blade, node, or partition.

“GPL” means General Public License, Version 3, as stated in the software license as drafted by Richard Stallman and as accepted within the Open Source Software community as the controlling software license for Open Source Software (http://www.opensource.org/licenses/).

“Commercial Software License” means any license for software not covered by the GPL, including, but not limited to, add-ons, web services, APIs, toolkits, etc.

The Parties agree as follows:

1.      LICENSE GRANTED TO LICENSEE

In exchange for LICENSEE’S continued compliance with this Agreement, S3 grants LICENSEE a non-exclusive, non-transferable, fully revocable license to the Naos Framework product as follows:

  1. S3 will provide LICENSEE will receive a single copy of Naos Framework for download upon your acceptance of this Agreement and payment of licensing fees, including relevant source code, controls, our EULA, associated Commercial Software License notices, logos, and related documentation.
  2. S3 will provide bug fixes, patches, corrections, or other necessary updates to LICENSEE for a period of one (1) year from the execution of this Agreement.  After this period, LICENSEE has no further obligation to provide such bug fixes, patches, corrections, or necessary updates to LICENSEE.
  3. LICENSEE may have as many Installed Systems as necessary to use Naos Framework.
  4. LICENSEE may use and or modify the Naos Framework product as consistent with the scope of LICENSEE’S business, except as noted in this Agreement.

2.      DUTIES OF LICENSEE

LICENSEE understands and agrees to the following duties with regard to the license:

  1. LICENSEE shall follow the Naos Framework End User License Agreement and any associated GPL and Commercial Software Licenses as included with the Naos Framework product.
  2. LICENSEE shall not violate any intellectual property rights as held by S3.  LICENSEE understands that it is NOT entitled to claim any intellectual property rights in any changes that LICENSEE makes to Naos Framework.
  3. LICENSEE shall provide S3 with all source code changes that LICENSEE makes to Naos Framework upon request by S3.  LICENSEE shall comply with such requests within seven (7) business days.
  4. During the course of this Agreement and for period of two (2) years after its termination, LICENSEE shall not directly, or indirectly through use of 3rd parties, create a commercially competing product for Naos Framework.
  5. LICENSEE shall not remove the S3 logos from the product or attempt to re-brand the Naos Framework product in any fashion, unless otherwise agreed to by S3.
  1. Upon the expiration or termination of this Agreement, LICENSEE will immediately cease use of Naos Framework and delete all Installed Systems, backups, or other copies that LICENSEE has in its direct or indirect possession.
  1. LICENSEE understands and agrees that any violation of these duties or the provisions of this Agreement is grounds for the termination of this Agreement at the discretion of S3 and may subject LICENSEE to civil and/or criminal liability.

3.      LENGTH OF AGREEMENT

The Parties agree that this Agreement will not terminate unless LICENSEE violates a provision of this Agreement (see Provision 2F).

4.      LICENSE FEES

The Parties agree that the license fees for this Agreement are as follows:

  1. This Agreement does not have full force and effect until LICENSEE pays the required license fee as listed on our Website at the time this Agreement is executed.
  2. Any and all fees paid by LICENSEE under this Agreement are non-refundable, unless otherwise agreed in advanced and in writing by S3.

5.      RIGHT TO DISCONTINUE SUPPORT

LICENSEE understands that S3 reserves the right to discontinue support for older versions of Naos Framework.  Furthermore, LICENSEE understands that S3 is NOT required to support any changes as made by LICENSEE.

6.      NO WARRANTY OR GUARANTEE

LICENSEE understands and agrees that S3 makes no warranty or guarantee of any kind with regard to Naos Framework, including, but limited to, its installation, its use, and its effect upon other computer software and hardware.  LICENSEE understands and agrees that LICENSEE assumes all risks by installing Naos Framework.

7.      LIMITATION OF LIABILITY/DISCLAIMER OF DAMAGES

FOR ALL EVENTS AND CIRCUMSTANCES, S3 AND ITS AFFILIATES' AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT TO EXCEED THE AMOUNT THAT LICENSEE PAID TO S3 UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL S3 OR ITS AFFILIATES BE LIABLE TO LICENSEE OR ITS AFFILIATES FOR: ANY CLAIM BASED UPON A THIRD PARTY CLAIM; ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF S3 OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.      INDEMNIFICATION

LICENSEE represents and warrants to S3 that LICENSEE has the authority to enter into this Agreement.  LICENSEE further represents and warrants to S3 that LICENSEE is not in violation of any intellectual property or other legal rights in its use of Naos Framework or other Open Source Software.  Provided that S3 is in compliance with this Agreement and is not negligent in the performance of Services, LICENSEE agrees to indemnify S3 and to defend S3 against any and all third party claims, suits, demands, causes of action, liabilities and expenses (including, but not limited to, attorneys’ fees and costs of defense), that may arise as a result of or in connection with LICENSEE’S breach of this Agreement.

9.      TERMINATION

The Parties agree that LICENSEE may opt to terminate this Agreement with thirty (30) days prior written notice to S3.  The Parties agree that S3 will not terminate this Agreement unless LICENSEE is in violation of this Agreement.  The Parties agree that notice of termination is considered effective on the date that the party receives the written notice and that verbal notice is not sufficient to terminate this Agreement.  LICENSEE understands that all license rights as granted under this Agreement cease as of the termination of this Agreement, except as otherwise noted within the Agreement, and that such rights revert back to S3.

10.  ARBITRATION

In the event that The Parties cannot amicably resolve a dispute or damage claim resulting from this Agreement, S3 and LICENSEE agree to resolve any such dispute or damage claim by arbitration.  The arbitration proceeding shall be conducted in Pittsburgh, PA, in accordance with the rules of the American Arbitration Association then in effect with one (1) arbitrator to be selected by mutual agreement of The Parties.  If The Parties cannot agree on an arbitrator, then the American Arbitration Association shall select an arbitrator from the National Panel of Arbitrators.  The laws of Allegheny County in the State of PA shall apply to the arbitration proceedings.  The Parties agree that the arbitrator cannot award punitive damages to either party and agree to be bound by the arbitrator’s findings.  Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.

11.  CONFIDENTIALTY

The Parties understand that during the course of this Agreement, they may be exposed to each other’s Confidential Information and as such, agree to hold and keep such information as confidential.  The Parties further agree that such confidentiality survives the termination of this Agreement

12.  DISCLOSURE TO AGENTS OF PARTY

Prior to the disclosure of one party’s Confidential Information to any agents used by the other party including, but not limited to, S3s and independent contractors, the party using such agents shall obtain a written agreement from each such agent, containing language to the effect that the agent should:

  1. Hold all Confidential Information in confidence and not use such information for any purpose other than as it relates to discussions between The Parties or any subsequent business relationship between The Parties, and
  2. Return any Confidential Information that it has received immediately after it has completed its work for the party.

13.  RETURN OF CONFIDENTIAL INFORMATION

Upon termination of this Agreement, the Parties agree to deliver to each other any Confidential Information that has been received in some physical form, including, but not limited to, printouts, graphics, and electronics files, within seven (7) business days of such termination, unless The Parties have agreed otherwise by another, prior written agreement.

14.  COURT-ORDERED DISCLOSURE

The Parties agree that neither is liable for the disclosure of Confidential Information if made in response to a valid court order of a court or other authorized government agency; provided that at least ten (10) business days notice first be given to the other party.

15.  NO OTHER RELATIONSHIP OR LEGAL INTEREST

The Parties agree that this Agreement does not create any other relationship or legal interest between The Parties, including, but not limited to, any sales contract, license, title, guarantee of work, or right to use any Confidential Information, except as specified by this Agreement.

16.  CHOICE OF LAW

The Parties agree that the laws of the Allegheny County in the state of PA govern any conflict regarding the Agreement.

17.  INVALIDITY OF PROVISION

The Parties agree that even if a court invalidates a provision of this Agreement, the remaining Agreement provisions are still valid and remain in full effect.

18.  NO OTHER AGREEMENTS OR REPRESENTATIONS

The Parties agree that this Agreement completely expresses their mutual intent and that it supersedes any other agreement or representation, oral or written, between the Parties with regards to the subject matter of this Agreement.

19.  MODIFICATION

The Parties agree that no modification can be made to this Agreement without another mutual, written agreement.

20.  EFFECT ON OTHER PARTIES

The Parties understand and agree that their assigns and successors are bound by this Agreement.

21.  NOTICE

LICENSEE understands and agrees that any notices, consents, approvals, demands, requests or other communications required by this Agreement must be in writing and are only considered valid when delivered by hand or sent by U.S. registered or certified mail to the corporate office address as listed on S3’s website.  S3 will provide notices to LICENSEE at the email address and physical address which LICENSEE has provided upon registering with S3’s website, http://www.naos-framework.com/.

22.  HEADINGS

The Parties understand and agree that the headings in this Agreement are included only as a matter of convenience and in no way define, limit or extend the scope of this Agreement or any of its provision.

23.  DIGITAL SIGNATURE

You understand that by entering your name and clicking on the Ok button below, you are digitally signing this Agreement and as such, you are agreeing to be bound to the terms of this Agreement.