SOFTWARE REDISTRIBUTION LICENSE AGREEMENT
This Software Redistribution License Agreement is entered into this _______ day of ___________, ________(“Effective Date”) between StorageCraft Technology Corporation, a Utah corporation having its principal place of business at 180 West Election Road, Suite 230, Draper, UT 84020, hereinafter (“StorageCraft”) and _________________________________________________________________ (Distributor Name) _________________________________________________________________ (Address) ________________________________________________________________, (City) (State) (Zip Code) hereinafter ("Distributor"). BACKGROUND StorageCraft is in the business of developing and licensing proprietary software products. StorageCraft desires to grant Distributor a royalty-free, non-exclusive, non-transferable, worldwide license to redistribute to End Users Trial Versions of the StorageCraft Products included at Exhibit “A” of this Agreement (hereinafter "StorageCraft Products") subject to the terms and conditions of the license granted under this Agreement. Distributor desires to be granted a redistribution license to redistribute to End Users Trial Versions of the StorageCraft Products included at Exhibit “A” of this Agreement, subject to the terms and conditions of the license as granted under this Agreement. StorageCraft and Distributor intend that the redistribution of the Trial Versions of StorageCraft Products by Distributor under the license granted by this Agreement will be a royalty free (free distribution license), under the license granted by this Agreement, to provide Trial Versions of all StorageCraft Products listed at Exhibit "A" without the requirement that Distributor pay any royalty to StorageCraft in conjunction with the redistribution of such StorageCraft Products. NOW, THEREFORE, StorageCraft and Distributor agree as follows:
1.1 “Agreement” means this Software License Agreement, including all exhibits attached hereto.
1.2 “StorageCraft” means StorageCraft Technology Corporation, a Utah corporation.
1.3 “StorageCraft Software” means any StorageCraft Product listed at Exhibit “A.”
1.4 “Distributor” means the party designated "Distributor" by this Agreement and granted a license under the terms and conditions of this Agreement. The Distributor seeks to engage in the business of redistributing StorageCraft Products.
1.5 “Customer” means any End User who receives by redistribution from Distributor a Trial Version of any StorageCraft Product listed at Exhibit “A” of this Agreement.
1.6 “Documentation” means the documents or other information pertaining to any StorageCraft Product Trial Version, which is redistributed by Distributor to End Users under the license granted to Distributor pursuant to this Agreement. Documentation includes the User Manual for a StorageCraft Product that is incorporated in the Trial Version of the particular Product or otherwise available to the Trial Version End User by download from StorageCraft’s website.
1.7 "Exhibit A" means the attachment to this License Agreement titled StorageCraft Products and listing all StorageCraft Products covered by the redistribution license granted under this Agreement.
1.8 "Free Distribution License" means the royalty free redistribution license granted by StorageCraft to Distributor under the terms and conditions of this Agreement.
1.9 “Trial Version End User” means the recipient of a Trial Version of a StorageCraft Product pursuant to the redistribution activity of Distributor. A Trial Version End User must accept the StorageCraft EULA prior to installing the specific StorageCraft Product.
1.10 "EULA" means the StorageCraft End User License Agreement that must be accepted by a Trial Version End User prior to installation of the specific StorageCraft Product.
1.11 “Program” means the most current commercially available version of each of StorageCraft’s Product listed at Exhibit "A," which Distributor is licensed to redistribute under this Agreement including additional StorageCraft Products licensed to Distributor under a subsequent amendment hereto.
1.12 “Program Copy” means a copy of a Trial Version of a StorageCraft Product in media form (e.g., hard disk, CD/DVD) or a copy obtained by means of an electronic download) which Trial Version copy is redistributed on a stand-alone basis or included in a bundled set of Trial Version programs consisting of one or more StorageCraft Products and may include bundles that incorporate one or more third party software products to be redistributed by Distributor to its Customers.
1.13 “Redistributor” means a Distributor granted a redistribution license under this Agreement to distribute Trial Versions of StorageCraft Products to End Users.
1.14 "StorageCraft Products" means all StorageCraft Products covered by this Agreement and listed at Exhibit "A."
1.15 "Trial Version" means the version of a specific StorageCraft Product that is provided to an End User for trial evaluation and which functions for a period of thirty (30) days from installation, after which it "times out" and becomes inoperable.
1.16 "System Builder Install Version" means a special build of a Trial Version for a StorageCraft Product listed at Exhibit "A" that enables the Distributor to install a desk top icon on hardware manufactured or configured by Distributor for use by the hardware customer as a shortcut to the regular StorageCraft Product install program.
1.17 "Redistribution Install Packages" means the install packages provided by StorageCraft to Distributor to support a specific redistribution program of Distributor. The StorageCraft install packages available to Distributor are described at Section 2.1, 2.2 and 2.3 of this Agreement. 2. RIGHTS GRANTED TO
2.1 License Granted. StorageCraft hereby grants to Distributor a royalty-free, non-exclusive, non-transferable, worldwide license to redistribute copies and/or electronic downloads of Trial Versions of StorageCraft Products included at Exhibit "A" of this Agreement, without charge or other fee to End Users, subject to the terms and conditions of this Agreement. Distributor is authorized and licensed to redistribute all StorageCraft Products included at Exhibit "A" employing one or more of the redistribution methodologies described below.
2.2 Redistribution by System Builders. Distributor is granted the right to copy and install StorageCraft Products on hardware configured and distributed by Distributor to End User Customers. Hardware Distributors are granted the right to install on such hardware a copy of the System Builder Version of the particular StorageCraft Product. This install version will create a desktop icon useable by Customer as a shortcut to the regular install function of the product. The StorageCraft Product installed on the Distributor's hardware will load and present StorageCraft's End User License Agreement (EULA). This EULA must be accepted by the potential Trial Version End-User as a condition prior to installation of such Trial Version copy of the software.
2.3 Redistribution by CD/DVD Copies. Distributor is granted the right to copy and package for redistribution on CD/DVD media an installable Trial Version of all StorageCraft Product listed at Exhibit "A" as stand alone Trial Versions or bundled with other StorageCraft Products. The Distributor is also granted the right to copy and bundle the Trial Version of one or more StorageCraft Products listed at Exhibit "A," together with one or more Trial Versions of software products developed and/or republished by third parties. Trial Versions of a StorageCraft Product redistributed by Distributor on CD/DVD media will present the StorageCraft End User License Agreement (EULA) prior to installation of the product. This EULA must be accepted by the potential Trial Version End-User as a prior condition to installation of such Trial Version copy of the product.
2.4 Redistribution by Download of Software. Distributor is granted the right to provide by electronic download from the Distributor's website a Trial Version of any StorageCraft Product listed at Exhibit "A." The Trial Version of a StorageCraft Product redistributed by Distributor by electronic download from its website will present the StorageCraft's End User License Agreement (EULA). This EULA must be accepted by the potential Trial Version End-User as a prior condition to installation of such Trial Version copy of the product. 2.5 No Final Licenses Distributed. The license granted to Distributor under this Agreement is limited to redistribution of a Trial Version of the StorageCraft Products listed at Exhibit "A." Distributor is not authorized to distribute or otherwise provide a final End User License to any StorageCraft Product to any party. Distributor will not be entitled to any revenue derived by StorageCraft from sale of a Final Version License made to a Distributor's Trial Version customer.
TRIAL VERSION LICENSE
3.1 Distributor is granted the right and otherwise authorized to redistribute a Trial Version copy of all StorageCraft Products listed at Exhibit "A." All Trial Versions of such Products shall have the following characteristics.
3.1.1 The Trial Version of the Product will present an End User License Agreement (EULA) to the potential End User prior to installation. The potential End User must accept the terms and conditions of the Trial Version License as a condition to proceeding with installation of the Trial Version Product.
3.1.2 The Trial Version will operate for thirty (30) days from the time of installation and, after the expiration of the thirty day period, will "time out" and immediately become inoperable. 3.1.3 At the time of expiration of the Trial Version, the End User will be notified, as a feature of the Trial Version, that a final license is available for purchase at the StorageCraft website.
4.1 Provide Installs of Trial Versions. StorageCraft shall provide to Distributor, at no cost, all installs of StorageCraft Products listed at Exhibit "A." Such Product installs shall support the specific redistribution method or methods employed by Distributor for providing the Trial Version of StorageCraft Products as described at paragraphs 2.1, 2.2 and 2.3 of this Agreement. Distributor shall be solely responsible for all costs associated with the redistribution methodology selected by Distributor. A Distributor may use one or more of the redistribution methods described at Section 2.1, 2.2 and 2.3 of this Agreement.
4.2 StorageCraft's Points of Contact. StorageCraft has provided at Exhibit "B," Points of Contact, available to Distributor to assist Distributor in conducting the redistribution program licensed under this Agreement.
4.3 Documentation. StorageCraft shall be responsible for providing documentation in the form of a User Guide for each StorageCraft Product listed at Exhibit "A." The User Guides will, at StorageCraft's discretion, be incorporated in the particular Trial Version Install provided to Distributor for redistribution or be provided as a downloadable PDF file at StorageCraft's website.
4.4 End User Support. Distributor will provide End Users with the support normally provided by StorageCraft to Trial Version End Users consisting of frontline support available from StorageCraft's CRM and email-based assistance. All End User support requests received by Distributor will be referred to StorageCraft. Distributor is under no obligation to provide any Trial Version End User support or training for any StorageCraft Product.
WARRANTIES, REPRESENTATIONS AND COVENANTS
5.1 StorageCraft warrants, represents and covenants to Distributor as follows with respect to the Trial Version of the StorageCraft Products listed at Exhibit "A" and acknowledges that Distributor is relying on such warranties, representations and covenants in entering into this Agreement and the transactions contemplated in this Agreement:
5.1.1 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE STORAGECRAFT PRODUCTS LISTED AT EXHIBIT "A" ARE PROVIDED AND LICENSED "AS IS" AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW OR OTHERWISE, REGARDING THEM, OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. STORAGECRAFT DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING PERFORMANCE OF THE STORAGECRAFT PRODUCTS, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY STORAGECRAFT. THERE IS NO IMPLIED WARRANTY OF NON-INFRINGEMENT.
5.1.2 NO AGREEMENTS VARYING OR EXTENDING THE FOREGOING WARRANTIES OR LIMITATIONS WILL BE BINDING ON EITHER PARTY UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF BOTH PARTIES.
5.1.3 Distributor will give and make no warranties or representations on behalf of StorageCraft as to quality, merchantable quality, fitness for a particular use or purpose or any other features of the StorageCraft Software; and Distributor shall not incur any liabilities, obligations or commitments on behalf of StorageCraft, including, without limitation, any variation of the Trial Version End User License.
TERM OF AGREEMENT
6.1 This Agreement shall commence on the Effective Date and shall continue, unless it is terminated in accordance with the provisions of Section 7, for such period as StorageCraft shall continue to sell the specific version of each StorageCraft Product designated at Exhibit "A."
7.1 This Agreement may be terminated by either party, without cause, by providing the other party thirty (30) days written notice of its intent to terminate the Agreement. Upon termination of this Agreement the License granted to Distributor pursuant to this Agreement shall terminate.
PROTECTION OF SOFTWARE
8.1 Distributor shall not under any circumstances attempt to or actually decompile, decipher, disassembled, reverse engineering or otherwise determine the
source code and content of any StorageCraft Product listed at Exhibit "A." Distributor shall not knowingly permit others to engage in the prohibited activities listed above in this section.
9.1 Each party (hereinafter the “receiving party”) acknowledges and agrees that any business and technical information provided to the receiving party by the other party (hereinafter the “disclosing party”) hereunder constitutes the confidential and proprietary information of the disclosing party, and that the receiving party’s protection thereof is essential to this Agreement and a condition to the receiving party’s use and possession thereof. The receiving party shall retain in strict confidence and not disclose to any third party, including the terms and conditions of this Agreement, (except as authorized by this Agreement) without the disclosing party’s express written consent, any and all such information. Distributor acknowledges and agrees that the StorageCraft Product Source Code, design, product development, roadmap, marketing plans, personnel, product research and other technical information, is the confidential and proprietary information of StorageCraft.
9.2 The receiving party shall be relieved of this obligation of confidentiality to the extent any such information:
9.2.1 was in the public domain at the time it was disclosed or has become in the public domain through no fault of the receiving party;
9.2.2 the receiving party can prove was known to the receiving party, without restriction, at the time of disclosure as shown by the files of the receiving party in existence at the time of disclosure;
9.2.3 is disclosed by the receiving party with the prior written approval of the disclosing party;
9.2.4 the receiving party can prove was independently developed by the receiving party without any use of the disclosing party's confidential information and by employees or other agents of the receiving party who have not had access to any of the disclosing party's confidential information, or
9.2.5 become known to the receiving party, without restriction, from a source other than the disclosing party without breach of this Agreement by the receiving party and otherwise not in violation of the disclosing party's rights.
STORAGECRAFT COPYRIGHT AND TRADEMARK
10.1 Distributor acknowledges that all StorageCraft Products listed at Exhibit "A" of this Agreement are the intellectual property of StorageCraft and that StorageCraft is the owner of all copyright interests in all such Products. Distributor further acknowledges that all names, logos, copy lines and tag lines ( included at Exhibit "C" are the trademarks of StorageCraft and that Distributor has no rights in any trademark therein listed.
LIMITATION OF LIABILITY
11.1 To the maximum extent allowed by law, StorageCraft is not liable for any indirect, incidental, special or consequential damages, including the loss of profits, revenue or data.
12.1 Neither this Agreement, nor any rights, licenses nor obligations hereunder, may be assigned by either party without the prior written approval of the non-assigning party.
13.1 All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by certified or registered mail (return receipt required) or faxed to the addresses set forth as follows: If to StorageCraft: StorageCraft Redistribution Program 180 West Election Road, Suite 230, Draper, UT 84020 If to Distributor: _____________________________________ (Name) _____________________________________ (Address) _____________________________________ Notices shall be deemed effective upon receipt.
14.1 Non-exclusivity. Nothing in this Agreement shall prevent either party from entering into a similar agreement with any other party. This Agreement shall not be construed to restrict either party from engaging in any activities with respect to the other party's competitors' products or services.
RELATIONSHIP OF THE PARTIES
15.1 The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement.
16.1 This Agreement shall be governed by the laws of the State of Utah.
17.1 Any term or provision of this Agreement held to be illegal or unenforceable shall, if possible, be interpreted so as to be construed as valid, but in any event the validity or enforceability of the remainder hereof shall not be affected.
18.1 Distributor understands that StorageCraft is subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibits export or diversion of certain technical products to certain countries. Distributor warrants that it will comply in all respects with the export and re-export restrictions applicable to the technology and documentation licensed hereunder.
19.1 The waiver of, or failure to enforce, any breach or default hereunder shall not constitute the waiver of any other or subsequent breach or default.
20.1 This Agreement, along with Exhibits "A," "B" and "C" attached hereto which are incorporated herein by reference, sets forth the entire Agreement between the parties and supersedes any and all prior proposals, agreements and representations between them, whether written or oral. This Agreement may be changed only by mutual agreement of the parties in writing. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by duly authorized officers or representatives as of the Effective Date. StorageCraft By: _________________________________ Curt James, VP Business Development
Distributor By: __________________________________ __________________________________ (title)
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EXHIBIT "A" STORAGECRAFT PRODUCTS Product Name Version Licensed By This Agreement ShadowSurfer™ ,ShadowUser™, ShadowServer™
EXHIBIT "B" STORAGECRAFT POINTS OF CONTACT Distributor Problem/Issues Primary Contact partners@StorageCraft.com Re: Redistribution License Program 180 West Election Road, Suite 230, Draper, UT 84020. Technical Issues at support@StorageCraft.com
EXHIBIT "C" STORAGECRAFT TRADEMARKS AND COPYRIGHTS Distributor acknowledges that the following are trademarks of StorageCraft:
F. StorageCraft logo
G. ShadowSurfer logo
H. ShadowUser logo
I. ShadowServer logo
J. StorageCraft tag line "Leading the Way to Safer Computing" K. ShadowSurfer tag line "Safe & Secure Web Surfing"
L. ShadowUser tag line "The Ultimate Solution for Your PC" M. ShadowSaver tag line "Your Server's First Line of Defense" Distributor recognizes that the following are Copyrighted property of StorageCraft.
A. ShadowSurfer™ - Software and Documentation including User Guide
B. ShadowUser™ - Software and Documentation including User Guide
C. ShadowServer™ - Software and Documentation including User Guide