Wacom Commercial Version Signature SDK License Agreement
This Wacom Commercial Version Signature SDK License Agreement (“License Agreement”) is made and entered into as of ___________, 2013 (“Effective Date) by and between (“You”), as the Licensee, a Japanese Corporation, having a principal business place at (“Licensee”) and Wacom Co., Ltd., a Japanese corporation having a principal business place at 2-510-1 Toyonodai. Kazo-shi, Saitama, 349-1148 JAPAN (“WACOM”).
You as “Licensee” have previously entered into the Wacom Evaluation Version SDK License Agreement with WACOM, and has evaluated and used the Wacom Evaluation Version Signature SDK Software (“Evaluation Version Software”) for the sole purpose of determining whether Licensee will enter into the Signature SDK License Agreement which enables Licensee to use the Commercial Version Software in order to develop, assemble, use and/or distribute and license application software for Wacom’s pen-tablet, equipped with signature capture capability (Wacom Product) for a commercial purpose.
WACOM has recognized that the terms for the commercial license should not pose more than a modest financial burden on Licensee, to facilitate the Licensee’s development and commercialization of such application software. Accordingly, WACOM has established i) a reasonable per-copy royalty on each application software copy licensed or otherwise distributed to end-users, without any initial payment to WACOM, or alternatively ii) a fixed amount, one-time payment based upon total estimated number of application software copies licensed or distributed. .
As a result of Licensee’s use and evaluation of the Evaluation Version Software, Licensee has expressed its determination to enter into this License Agreement for the commercial version of such Software.
In accordance with the established license terms and conditions including the commercial terms such as per-copy royalty, WACOM as Licensor and Licensee agree to enter into this License Agreement.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
As used in this License Agreement, the following terms shall have the following meanings:
|1.1.||“Software” means the software, and all of its components in the form of executable code, developed and identified by Wacom as the “Signature SDK” or “Evaluation Version Signature SDK” and that will be used by Licensee to develop, assemble, use and/or distribute and license a Licensee Product.|
|1.2.||“Licensee Product” means application software that combines the Software or any components thereof only with other computer program(s) independently developed or procured by Licensee, to be used solely with Wacom Products.|
|1.3.||“Wacom Product” means a Wacom-branded pen-tablet which is equipped with signature capture capability and with which the Software is compatible,including, but, not limited to, Wacom-branded STU series Signature Tablets, DTU-series LCD pen-tablets and Cintiq-series LCD pen-tablets. Wacom Product is sold or provided to end users, either as a stand-alone product or as bundled with the Sofrware.|
|1.4.||“Documentation” means instructions, manuals and diagrams in printed and electronic media provided to Licensee pertaining to the Software.|
|1.5.||“End-User” means a prospective or actual Licensee End User or Independent End User.|
|1.6.||“Licensee End User” means a prospective or actual user of the Software or components thereof as part of a Licensee Product, and who is employed by or under the direct control of a Licensee entity.|
|1.7.||“Independent End User” means a prospective or actual user of the Software or components thereof as part of a Licensee Product, and who is not employed by or under the direct control of a Licensee entity.|
|1.8.||“Trademarks” means all trademarks, trade names, service marks, logos, now owned or hereinafter acquired by Wacom and all other trademarks, trades names, service marks and logos identifying or used in connection with the Software, whether or not registered.|
|1.9.||“Third-Party Software” means the third party software components (including open source and free software) described in Section 4.1 and any related licenses, notices, source code, and/or documentation.|
2. Grant of License
|2.1.||Provision of License Key and Software
WACOM shall following execution of the License Agreement provide to Licensee the necessary license key(s) and the Software to enable you as Licensee to use the Software as provided in the License Agreement.
|2.2.||License to Licensee – for Development and Use with Licensee End Users
Subject to the terms and conditions set forth in this License Agreement, WACOM hereby grants to Licensee a royalty-bearing, non-exclusive, and non-transferable license to use the Software to develop and assemble a Licensee Product to be installed on Licensee End Users’ computers, for use solely in conjunction with Wacom Product. This license also allows Licensee to install, activate and/or use the Software or components thereof within the Licensee’s company. Within the same limits Licensee may use the Documentation in support of Licensee’s authorized use of the Software. Subject to this Licensee Agreement, and solely for the purpose of implementing a Licensee Product on Licensee End-Users’ computers, Licensee may copy and distribute one or more components of the Software as part of the Licensee Product to Licensee End-Users, and may install and activate the Software or components thereof as part of the Licensee Product on such Licensee End-Users’ computing devices, all for use solely in conjunction with a Wacom Product.
|2.3.||License to Licensee – for Development, Use and Distribution to Independent End Users
Subject to the terms and conditions set forth in this License Agreement, WACOM hereby grants to Licensee a royalty-bearing, non-exclusive, non-transferable license to use the Software to develop and assemble a Licensee Product to be installed on Independent End Users’ computers for use solely in conjunction with Wacom Product. Within the same limits Licensee may use the Documentation in support of Licensee’s authorized use of the Software. Subject to the terms of this License Agreement and solely for the purpose of implementing a Licensee Product on Independent End-Users’ computers and solely for use with Wacom Product, Licensee (a) may copy, distribute and sub-license one or more components of the Software as part of the Licensee Product to Independent End-Users, and may install and activate the SDK Software or components thereof as part of the Licensee Product on such Independent End-Users’ computing devices solely for use in conjunction with a Wacom Product; and (b) may sub-license to third-party distributors a royalty-bearing, non-exclusive and non-transferrable license to copy, distribute and sub-license one or more components of the Software as part of the Licensee Product to Independent End-Users, and to install and activate the Software or components thereof as part of the Licensee Product on such Independent End-Users’ computing devices solely for use in conjunction with a Wacom Product.
REQUIREMENT TO DISTRIBUTE TO INDEPENDENT END USERS WITH END USER LICENSE AGREEMENT
Whenever Licensee distributes the Software or components thereof to Independent End-Users, or seeks to install and activate the Software or components thereof on Independent End-User’s computers, Licensee shall require such Independent Users first to enter into the End User License Agreement (“EULA”) that is attached hereto as ATTACHMENT A. If Licensee distributes the Software or components thereof to Independent End-Users through a third party distributor, Licensee shall require the third party distributor to use the attached EULA when distributing the Software or components thereof to any Independent End-Users prior to activation and use of the Software or components thereof, and shall require the distributor to require Independent End users to accept such terms prior to activation of the Licensee Product.
|2.4.||Licensee acknowledges and agrees that other than as expressly provided in Section 2.2 and 2.3, Licensee has no right under this License Agreement to, and shall not, grant or purport to grant licenses or sublicenses to all or any portion of the Software. Any such license or sub-license is null and void.|
|2.5.||Ownership and Reservation of Rights
All rights not specifically granted to Licensee under this License Agreement are reserved by WACOM. Except as expressly set forth in this License Agreement, WACOM will not convey any intellectual property rights regarding the Software, any portions or components thereof, and/or any related Documentation or material provided to Licensee. Except for the licenses granted to Licensee hereunder, Licensee acknowledges that WACOM owns and shall retain all proprietary rights, including all Trademarks, patent, copyright, trade secret, other intellectual property rights and interests in and to the Software and components thereof, including without limitation any maintenance or enhancements. Licensee acknowledges that the license granted under this License Agreement does not provide Licensee with title to or ownership of the Software or any parts of it, but only a right of limited use under the terms and conditions of this License Agreement.
|2.6.||No Reverse Engineering or Alteration of Software
Licensee shall have no right to receive, review or otherwise use or have access to the source code of the Software or of any portions or components thereof. Licensee acknowledges that the Software, any code therein, and their structure, sequence, and organization are valuable trade secrets of WACOM, and Licensee agrees not to alter, decompile, disassemble, reverse engineer, attempt to discover or reconstruct source code, or modify in any way, the entire or any portion of the Software or prepare derivative works from or of them.
|2.7.||Modifications, Upgrades, Support
WACOM may but are not obligated to modify or add to the Software as part of its reasonable commercial efforts within the functionality thereof, including bug fixing. WACOM reserves the right to discontinue developing, producing, licensing, or distributing the Software and to modify or replace the Software at their discretion at any time. WACOM will make a reasonable commercial effort to provide technical support, maintenance, upgrades, modifications or new releases under this License Agreement.
3. Licensee’s Obligations
Subject to the terms and conditions of this License Agreement, Licensee shall:
|3.2.||EULA Issued By Licensee.
WACOM expects Licensee to protect Licensee’s proprietary rights in the parts of the Licensee Product which Licensee has independently developed or procured and which are included with the Software in the Licensee Product. If Licensee distributes a EULA for the Licensee Product, Licensee shall require acceptance of such EULA prior to activation of the Licensee Product by Independent End-Users. Licensee shall simultaneously provide a copy of WACOM’s EULA, protecting WACOM’s proprietary rights in the Software, attached hereto as ATTACHMENT A and shall expressly require acceptance of such WACOM’s EULA prior to the activation of the Licensee Product by Independent End-Users. If Licensee does not provide its own EULA, it shall nevertheless require Independent End-Users to accept the EULA attached as ATTACHMENT A prior to the activation of the Licensee Product, as provided in Section 3.1.c.
|3.3.||Limitations on Use of Free and/or Open Source Software
Licensee acknowledges and agrees that Licensee shall not take any action that would require, indicate, or imply that the Software or code therein or any portion or component thereof (other than the Third Party Software identified in Section 4.1. below) is or may be licensed under the terms of any Free software and/or Open Source license. For example, and without limitation, Licensee shall not combine the Software or any component or code or portion therein with (a) software that is licensed under terms that would require, or purport to require, the resulting combined work, the Software, or any components or portions or code therein to become freely available, or to be licensed out under the same or similar terms as such software, or (b) software that would or might lead to compromise of WACOM’s ownership rights or copyright or other intellectual property rights in and to the Software or any components or code thereof.
If Licensee plans to combine the Software or any component or code or portion therein with any Open Source software or other Free software procured or used by Licensee, Licensee agrees to provide advance notice to WACOM in writing, such notice to include (1) an identification of such Open Source software or other Free software procured or to be used by Licensee in the Licensee Product; and (2) the license terms applicable to such software. WACOM as a developer and owner of the Software reserves the right to decline to permit the licensing of the Software or components thereof to Licensee if upon WACOM’s review WACOM in its sole discretion determines in good faith that the use of the Open Source software or other Free software procured or used by Licensee in the Licensee Product would or might require the licensing of any code in the Software, or would or might lead to compromise of WACOM’s trade secrets, copyrights, or other intellectual property rights.
|3.4.||Compliance with Third Party Software Licenses
Subject to Section 3.3, if and to the extent Licensee uses any Open Source, Free or other Third Party Software as part of the Licensee Product, Licensee acknowledges that Licensee is responsible for fulfilling all obligations of third party Software licenses and shall defend, indemnify and hold harmless WACOM, its affiliates including WACOM, and their officers, directors, employees, and representatives (“WACOM Indemnities”) from and against any claim based on the use or inclusion of third party software components or based on the violation of third party software licenses by Licensee.
As a condition of the rights granted under this License Agreement, Licensee shall include in each Licensee Product, including in Licensee’s end-user-license-agreement, in written Documentation and in the “About Box” of a Licensee Product, proprietary notices, including without limitation an acknowledgement of WACOM as copyright holder of the components of the Software used in the Licensee Product and a statement that such components were used in developing the Licensee Product.
It is expressly understood and agreed that WACOM shall have no obligation to reimburse Licensee for any expenses or costs incurred by Licensee in the performance of its responsibilities under this License Agreement. Any costs or expenses incurred by Licensee shall be borne solely by Licensee.
Licensee shall not alter or delete a Trademarks of WACOM that appear on or in connection with the Software, or components thereof, or during the display or operation of such software.
4. Third Party Software
|4.1.||Third Party Software
The Software includes and uses the following Third Party Software components, which are governed by the license terms set forth below.
|4.2.||Compliance with Third Party Software Licenses
Subject to Section 3.3 of this License Agreement, Licensee accepts the terms of the licenses identified in Section 4.1. and acknowledges that Licensee is responsible for fulfilling all obligations of Third Party Software licenses when using and/or distributing and licensing a Licensee Product. Licensee shall defend, indemnify and hold harmless WACOM, its affiliate, and their officers, directors, employees, and representatives (“WACOM Indemnitees”) from and against any claim based on the misuse of Third Party Software components or violation of third party software licenses by Licensee.
5. Warranties, Disclaimer and Limitation of Liability
|5.1.||The warranties, disclaimers and limitations set forth in this Section 5, are provided by WACOM.|
|5.2.||Warranty and Disclaimers (Other than Intellectual Property Rights)
EXCEPT TO THE EXTENT APPLICABLE LAW REQUIRES A LONGER WARRANTY PERIOD OR REQUIRES DIFFERENT OR ADDITIONAL WARRANTY PROVISIONS (IN WHICH CASE THE MIMIMUM REQUIRED PROVISIONS OF APPLICABLE LAW SHALL APPLY), WACOM WARRANTS THAT THE SOFTWARE AND THE COMPONENTS THEREOF, WHEN USED IN ACCORDANCE WITH THE DOCUMENTATION AND THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, WILL MATERIALLY PERFORM IN ACCORDANCE WITH THE DOCUMENTATION FOR A PERIOD OF ONE YEAR FROM THE DATE THE SOFTWARE IS FIRST ACTIVATED ON ANY COMPUTER BY LICENSEE. IN THE EVENT THE SOFTWARE FAILS TO CONFORM TO THE FOREGOING WARRANTY, WACOM SHALL USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT THE NONCONFORMITY, BY REPAIR OR REPLACEMENT, AT WACOM’S OPTION. REPLACEMENT OR REPAIR OF THE SOFTWARE DOES NOT EXTEND ITS WARRANTY PERIOD BEYOND THE ORIGINAL WARRANTY PERIOD. THE WARRANTY SET FORTH IN THIS SECTION 5.2 SHALL NOT APPLY TO THE EXTENT ANY NON-CONFORMITY IS CAUSED BY COMPONENTS OF THE LICENSEE PRODUCT THAT ARE NOT PART OF THE SOFTWARE.
EXCEPT TO THE EXTENT EXPRESSLY STATED ABOVE, AND EXCEPT FOR ANY OTHER WARRANTY EXPRESSLY SET FORTH IN THIS LICENSE AGREEMENT, WACOM PROVIDES NO OTHER WARRANTY AND HEREBY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY IN AND TO THE SOFTWARE. TO BE CLEAR, WACOM PROVIDES LICENSEE NO WARRANTIES, CONDITIONS, GUARANTEES OR REPRESENTATIONS AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS, OF RESULTS, OF LACK OF VIRUSES, ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE, OF LACK OF NEGLIGENCE, OR ANY OTHER WARRANTIES, CONDITIONS, GUARANTEES OR REPRESENTATIONS, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, ITS PERFORMANCE OR OTHERWISE RELATED TO THIS AGREEMENT.
Licensee shall be solely responsible for the testing of the Software for Licensee’s purposes. Licensee acknowledges that it is technically not possible to develop data processing computer programs which are entirely free of technical issues. In the event that Licensee identifies any technical issue with the Software, whether alone or as part of the Licensee Product, Licensee shall promptly report such issue in writing to WACOM. WACOM shall not have any obligation to remedy any issue reported by the Licensee unless covered by the Warranty in Section 5.1. However, if WACOM develops a version of the Software or a patch or remedy that resolves the issue, WACOM shall provide such version, patch, or remedy to the reporting Licensee.
|5.4.||Limitation of Liability
IN NO EVENT WILL WACOM OR WACOM BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, USE OR COST OF SUBSTITUTE PROCUREMENT, INCURRED BY LICENSEE OR ANY THIRD PARTY, IN ANY TYPE OF ACTION, INCLUDING AN ACTION IN CONTRACT OR TORT, EVEN IF WACOM OR WACOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. LICENSEE ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION AND IN THE OTHER PROVISIONS OF THIS LICENSE AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH WACOM WOULD NOT HAVE ENTERED INTO THIS LICENSE AGREEMENT. THE PRICING OF THE SOFTWARE AND/OR THE PRODUCTS WITH WHICH LICENSEE PRODUCT MAY BE USED REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN. TO THE EXTENT ANY WARRANTY IS PROVIDED BY LAW OR UNDER THIS LICENSE AGREEMENT OR IN THE EVENT OF ANY OTHER CLAIM RELATED IN ANY WAY TO THIS LICENSE AGREEMENT OR THE SOFTWARE, WACOM’S LIABILITY UNDER THIS LICENSE AGREEMENT OR IN ANY WAY RELATED TO THE SOFTWARE SHALL NOT EXCEED THE AMOUNT PAID BY THE LICENSEE TO WACOM FOR THE SOFTWARE EXCEPT FOR ANY LIABILITY ARISING FROM SECTION 5.5 OF THIS AGREEMENT. NOTWITHSTANDING THE ABOVE, TO THE EXTENT PROHIBITED BY APPLICABLE LAW, NOTHING IN THIS LICENSE AGREEMENT LIMITS WACOM’S LIABILITY TO LICENSEE IN THE EVENT OF: (i) DEATH OR PERSONAL INJURY TO THE EXTENT RESULTING DIRECTLY FROM WACOM’S NEGLIGENCE OR THAT OF ITS EMPLOYEES OR AGENTS; OR (ii) ANY FRAUDULENT ACT OR OMISSION OF WACOM OR THAT OF ITS EMPLOYEES OR AGENTS; OR (iii) TO THE EXTENT ARISING OUT OF ANY WILFUL OR GROSSLY NEGLIGENT MISCONDUCT ON THE PART OF WACOM.
|5.5.||Warranty and Indemnification Regarding Patents and Other Intellectual Property Rights
WACOM warrants that the offer of sale, distribution and use of the Software or components thereof do not infringe or otherwise violate any copyright, trade secret, trademark, patent, or other intellectual property right of any third party.
WACOM shall at its own expense and through its outside counsel indemnify and hold harmless Licensee, its affiliates, distributors, customers, officers, agents and employees from and against all liability, loss and costs arising from any claim of alleged infringement, related solely to the Software or components thereof, of any third party’s patent, trademark, copyright or any other intellectual property right, provided that: i) such alleged infringement does not arise from the use, offer for sale or distribution of the Software as a part of or in combination with any other software, devices or parts; ii) Licensee gives WACOM immediate notice in writing of any such suit. ; and iii) Licensee does not enter into a settlement of the alleged infringement. Licensee agrees that WACOM shall have sole control of the defense and disposition of any lawsuit arising from the alleged infringement. If Licensee settles any claim covered by the above warranty, Licensee shall be solely responsible for such settlement, and WACOM shall have no responsibility.
The express remedies set forth in this License Agreement are in lieu of all obligations or liabilities on the part of WACOM for damages resulting from breach of warranty, breach of contract, negligence or on any other legal theory.
|5.7.||Separate Warranty for Hardware
Any warranty provided by WACOM hereunder is separate from any warranty provided by WACOM for any Wacom Product sold to Licensee or an End-User.
6. Compensation to WACOM
|6.1.||Per Copy Royalty or Alternatively One-Time Fixed Royalty Payment
As compensation for the license granted by WACOM including all other benefits
received under this License Agrrement, Licensee agrees to pay to WACOM in the following manner:
□ a Royalty of ___________ Japanese Yen (￥ _____ ) on each copy of Licensee
□ a One-Time Fixed Royalty Payment of ￥ ________, as calculated based upon
Upon the negotiation between WACOM and Licensee, one of the above two check boxes shall be clicked to determine the mutually-agreed manner of compensation.
|6.2.||Remittance of One-time Fixed Royalty Amount
Under Section 6.1, if a One-Time Fixed Royalty Payment is agreed upon between the
parties, Licensee shall remit the amount thereof to WACOM’s designated bank account
as set forth in Section 6.3. within ____( ___ ) working days after the Effective Date.
|6.3.||Report and Payment
Under Section 6.1, if Per Copy Royalty is agreed upon between the parties as the manner of compensation, during the term of this License Agreement and until the date of the termination of this License Agreement as set forth in Section 7, Licensee shall make written quarterly reports (the “Report”) to WACOM’s address below within 30 days after the end of each quarterly period of the calendar year. Each Report shall state i) the name(s) of the Licensee Product(s) and ii) the quantity of copies of each Licensee Product distributed to End-Users during the applicable quarterly period. To the extent Licensee distributes the Licensee Product through a third party distributor, Licensee shall require such third party distributor to furnish a report to Licensee stating i) the name(s) of the Licensee Product(s) and ii) the quantity of copies of the Licensee Product distributed to End Users during the applicable quarterly period. Licensee shall include in its Reports the quantity of copies distributed by such third party distributor. The reports shall also state the total amounts of Per Copy Royalties. The format of Royalty Report which Licensee shall submit to WACOM is attached hereto as ATTACHMENT B.
WACOM designated address:
Within ten (10) working days after the receipt of the Report submitted by Licensee, WACOM shall issue the invoice for royalty amount. Within ___(__) days after the receipt of such invoice by Licensee, Licensee shall remit the invoice amount to the following WACOM’s Bank Account;
Bank Name: _______________________
|6.4.||Records and Audits.
Under Section 6.1, if Per Copy Royalty is agreed upon between the parties as the manner of compensation, Licensee agrees to keep records showing the Licensee Product distributed to End-Users sufficient to enable the royalties payable hereunder by Licensee to be determined, including the identities of third party distributors that distribute Licensee Product and the entities or persons to whom the Licensee Product was distributed and the date of distribution. Licensee further agrees that WACOM may examine Licensee’s books and records not more than once every year to verify such distribution. Such examination is to be made by an independent auditor appointed by WACOM. The cost of such audit shall be borne by WACOM, unless such audit determines that Licensee has underpaid the royalties due hereunder by the lesser of (a) more than five percent (5%) or (b) One Hundred Thousand Japanese Yen (￥ 100,000); in which case, Licensee shall, in addition to paying the deficiency plus late payment charges, reimburse WACOM for the cost of such audit. Licensee shall preserve and maintain the records required for audit for a period of five (5) years after the calendar quarter to which the records apply. The report made by the auditor, the Audit Report, shall be disclosed to WACOM but shall remain Licensee confidential information and be subject to confidentiality in accordance with this License Agreement. All other information obtained by the auditor shall be maintained as confidential by the auditor and shall not be shared with WACOM.
|6.5.||Interest on Overdue payment
Licensee shall be liable for interest on any overdue payment (including the one caused by Licensee’s delayed Report), commencing on the date such payment becomes due, at an annual rate of _____ percent (___%). If such interest rate exceeds the maximum legal rate in the jurisdiction where a claim therefor is being asserted, the interest shall be reduced to such maximum legal rate.
The information contained in the Reports which WACOM shall receive from Licensee pursuant to Section 6.3 and in Audit Reports which WACOM shall receive from such independent auditor pursuant to Section 6.4 shall be treated as the part of Confidential Information referred to in Section 9 and Section 9 shall be applied to such Confidential Information.
7. Term and Termination
This License Agreement commences on the Effective Date and shall remain in effect until terminated.
|7.2.||Termination in Case of Breach of Contract
In the event of a breach of this License Agreement, including but not limited to any unauthorised use, installation, activation or distribution of the Software and/or its Documentation by Licensee, as a whole or parts of it, or in the event of a breach of this License Agreement that is not cured within thirty (30) days in accordance with prior notice specifying such breach to Licensee, (a) The license granted under Section 2.2. or 2.3. shall automatically terminate; (b) Except for the limited use allowed in Section 7.4 below, Licensee shall immediately stop using the Software including distributing Licensee Product to End-Users; (c) Licensee shall have no further rights under this License Agreement; (d) WACOM shall be entitled to recover any damages resulting from the breach by Licensee; (e) such a breach may result in criminal and/or civil prosecution; and (f) warranty claims, if arising solely out of applicable law or by Addendum, shall be forfeited.
Either party may terminate this License Agreement upon thirty (30) days written notice to the other. In addition, the parties may mutually agree in writing to terminate this License Agreement on such terms as they may agree to, or either party may immediately terminate this License Agreement by giving the other party a written notice based on any of the following:
|7.4.||Effect of Termination
Upon termination according to Section 7.1, 7.2 or 7.3. of this License Agreement, no residual rights will remain with Licensee, and in no event may Licensee use, license, sell or otherwise transfer the Software or components thereof to any third party after termination. Notwithstanding the above, a Licensee which is in the business of distributing Licensee Products to End-Users may continue such distribution, and any related installation and activation, for a period of up to one (1) month after termination solely to fulfil any order(s) for Licensee Product received in the normal course of business by Licensee and accepted prior to the date of termination. Upon termination, Licensee shall (a) return or destroy all copies of the Software and components thereof in Licensee’s possession, except that one (1) copy may be retained solely and only as long as necessary for support of existing licenses to End-Users; and (b) certify in writing that all other such copies of the Software have been destroyed or returned. Notwithstanding any conflicting provision herein, following termination of this License Agreement and for so long thereafter as is necessary for Licensee to satisfy obligations for maintenance services to End-Users, Licensee shall have a limited license to use the Software solely for and only as long as needed for such purposes, provided however that Licensee shall provide acceptable assurances to WACOM that Licensee’s use is so limited.
|7.5.||Upon any termination of this License Agreement, sections 1, 2, 3.3, 3.4, 5, 6, 7, 8 and 9 will survive.|
|8.1.||Obligation for Confidentiality
To the extent a party (receiving party) obtains or otherwise has access to information (“Confidential Information”) that is confidential to the other party or one of its corporate affiliates (disclosing party), the receiving party shall keep such Confidential Information confidential. Confidential Information shall include, but not be limited to, the Software and related Documentation and any enhancements or maintenance modifications, product performance benchmarks or test results, formulas, computer or software code, algorithms, specifications, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names and all information clearly identified at the time of disclosure as confidential. Confidential Information constitutes trade secrets of the owner and/or its suppliers. Confidential Information includes all information received from third parties that either party is obligated to treat as confidential and oral information that is identified by either party as confidential.
A party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; (iv) is independently developed by the other party without use of or reference to the other party’s Confidential Information; or (v) is required to be disclosed by law or valid order of a court or other governmental authority; provided, however, that the responding party shall first have given prompt notice to the other party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued.
|8.3.||No Grant of Rights
Except as otherwise provided in this License Agreement, all Confidential Information and any Derivatives thereof, remain the property of the disclosing party and no license or other rights to Confidential Information is granted or implied hereby. For purposes of this section, “Derivatives” shall mean: (i) for copyrightable or copyrighted material, any translation, abridgment, revision or other form in which an existing work may be recast, transformed or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent and/or trade secret.
|8.4.||No Warranty for Confidential Information
Except provided in this License Agreement, all Confidential Information is provided “as is” and without any warranty, express or implied, regarding its accuracy or performance. The receiving party will return all tangible Confidential Information of the disclosing party, including but not limited to all notes, plans, drawings, and copies thereof, immediately upon the other party’s written request.
|8.5.||Term of This Section
Except for the Software and related Documentation, each party’s obligation to protect the other party’s Confidential Information shall expire ten (10) years from the date of disclosure of Confidential Information.
The confidentiality obligation with respect to the Software and related Documentation shall not expire, and shall survive any termination of this License Agreement.
|8.6.||Immediate Injunctive Relief
Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this section and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this License Agreement.
|8.7.||Wacom acknowledges and agrees that if WACOM obtains or otherwise has access to Confidential Information of Licensee through its performance of this Agreement as a developer of the Software, WACOM shall protect such Confidential Information in accordance with this Section 8.|
9. General Provisions
|9.1.||Communications by means of e-mail or telefax shall fulfil the requirement of being in writing, except that such methods shall not apply with respect to any alterations, amendments and supplements of this License Agreement. The requirement of written form can only be waived in writing. Any official notice from either Party shall be addressed as follows:
To WACOM: Wacom Co., Ltd. Tokyo Branch, Sumitomo Fudosan Shinjuku Grand
To Licensee: (Name of Company)_______________________________
|9.2.||Relationship of the Parties
The parties undertake their respective obligations under this License Agreement as independent contractors. This License Agreement does not, and is not intended to create any employment, agency, franchise, joint venture, legal partnership or other similar legal relationship between the parties. Neither party is authorized to transact business, incur obligations, sell goods, solicit orders, or assign or create any obligation of any kind, express or implied, on behalf of the other party, or to bind it in any way whatsoever, or to make any contract, promise, warranty or representation on the other party’s behalf with respect to products sold by the other party or any other matter, or to accept any service of process upon the other party or receive any notice of any nature whatsoever on the other party’s behalf.
This License Agreement shall not be assignable by Licensee, and Licensee may not delegate its duties hereunder without the prior written consent of WACOM, which it may in its discretion grant or deny. Any attempt by Licensee to assign any of its rights or delegate any of its duties hereunder without the prior written consent of WACOM shall be null and void.
Except as contemplated by this License Agreement, neither party will use the Trademarks of the other party in news releases, advertising or otherwise without the prior written approval of such other party; provided, however, that WACOM may include Licensee, Licensee’s logo and/or Licensee Product on its customer lists and publicise such list in the relevant market in order to promote Wacom Products, the Software and/or Licensee Product.
Failure of either party at any time to require performance by the other party of any provision hereof shall not be deemed to be a continuing waiver of that provision, or a waiver of its rights under any other provision of this License Agreement, regardless of whether such provision is of the same or a similar nature.
Neither party shall be liable to the other because of any delay or failure if and to the extent such delay or failure is caused by occurrences beyond the control of the party including, but not limited to, acts of God; war, acts of terrorism, riots and civil disturbances; expropriation or confiscation of facilities or compliance with any order or request of governmental authority; strikes, labor or employment difficulties whether direct or indirect; or any cause whatsoever which is not within the reasonable control of the party. The party shall immediately notify the other of the existence of any such force majeure condition and the anticipated extent of the delay or non-delivery.
In the event that any of the provisions or part of a provision contained in this License Agreement is determined to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining contractual provisions. The parties undertake to replace the invalid or unenforceable provisions by a new provision which comes as near as possible to the economic intention of the parties including the ineffective provision at the time of closing this License Agreement as far as legally possible.
|9.8.||Law and Venue for Disputes
This Agreement and all matters arising out of or relating to this Agreement will be governed by the internal laws of Japan without giving effect to any choice of law rule. In the event of any controversy, claim, or dispute between the parties arising out of or relating to this Agreement or the Software, such controversy, claim, or dispute shall be settled exclusively by arbitration in Japan by Japan Commercial Arbitration Association in accordance with the Administrative and Procedural Rules for Arbitration under the UNCITRAL (United Nations Commission on International Trade Law). Licensee consents to and agree not to contest the settlement in the arbitration set forth in this Section 9.8.
|9.9.||Amendments to Agreement
This License Agreement cannot be altered, amended or supplemented except in a writing signed by both parties.
The headings set forth in this License Agreement are for convenience only, and are not intended as an interpretive aid or as comprising a term or condition of this License Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this License Agreement in English and duplicates to be executed by their duty authorized officers or representatives of the Effective Date as set for the above.
Licensor:____________________. Licensee:Wacom Co., Ltd.
Printed Signatory’s Name Printed Signatory’s Name
END USER LICENSE AGREEMENT FOR WACOM SIGNATURE SDK COMPONENTS
END USER LICENSE AGREEMENT
This End User License Agreement (this “Agreement“) is between you (both the individual installing the Software and any single legal entity on behalf of which such individual is acting) (“You” or “Your“) and Wacom Co., Ltd, 2-510-1 Toyonodai, Kazo-shi, Saitama 349-1148, Japan (“Wacom“).
IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS AGREEMENT. BY CLICKING THE “I ACCEPT” BUTTON OR INSTALLING, ACTIVATING OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE CLICK THE “I DO NOT ACCEPT” BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL NOT HAVE THE RIGHT TO INSTALL, USE, OR ACCESS THE SOFTWARE.
|1.1||“Software” means the software components that you received that are provided to the Sub-Licensor by Wacom as “Signature SDK“, including the Signature Component and/or the Wizard Component. Such software is used to capture signature information, create displays on a Wacom Product and present an interface for the collection of additional information. The term “Software“ also includes any Documentation provided to You, and any related updates to either of the foregoing provided by Wacom to You either directly or indirectly. “Software” does not mean or include any Third-Party Software.|
|1.2||“Documentation” means the user guides and manuals for installation and use of the Software, the content for which must have been provided by Wacom.|
|1.3||“Sub-Licensor“ means the person or entity licensed by Wacom to provide the Software to You for use in, among other things, capturing signature information.|
|1.4||“Wacom Product” means a Wacom branded pen-tablet which is equipped with signature capture capabilities and with which the Software is compatible,including, but, not limited to, Wacom-branded STU series Signature Tablet, DTU-series LCD pen-tablet and Cintiq-series LCD pen-tablet. Wacom Product is sold or provided to end users, either as a stand-alone product or bundled with the Sofrware.|
|1.5||“Third-Party Software” means the software components (including open source software) described in Section 5.6 and any related licenses, notices, source code, and/or documentation.|
2. SOFTWARE LICENSE
|2.1||Limited License. Subject to the terms and conditions of this Agreement, Wacom hereby grants to You a limited, non-exclusive license to: (a) use and install a single copy of the Software, in machine readable form only, on a single computer or other similar device, solely in conjunction with and for use with a Wacom Product; (b) use the Documentation provided with the Software in support of Your authorized use of the Software; and (c) make a single back-up copy of the Software, to be used solely for back-up purposes, provided that all trademark, copyright, and other proprietary and restricted rights notices, legends, and symbols included in the original version of the Software are reproduced on such back-up copy.|
|2.2||Restrictions. You will not, and will not permit, encourage, or enable any third party to, copy or use the Software (including the Documentation) except as expressly permitted by this Agreement. You will not, and will not permit, encourage, or enable any third party to, modify, translate, distribute, create derivative works based on, pledge, relicense, sublicense, loan, rent, or lease the Software, or use the Software for third-party training, commercial time-sharing or service bureau use. You will not, and will not permit, encourage, or enable any third party to, reverse engineer, disassemble or decompile the Software, or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Software, except to the extent expressly permitted by applicable law. You will not, and will not permit, encourage, or enable any third party to, use the Software in conjunction with any tablet, signature pad, or other device that is not a Wacom Product as defined in this Agreement. You will not remove or alter any trademark, copyright, or other proprietary and restricted rights notices, legends, and symbols appearing in or on the Software.|
|2.3||No Assignment; One Time Transfer. You will not transfer, assign, or delegate the Software or any of Your rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of Wacom, which shall not be unreasonably withheld. However, You may make a one-time permanent transfer of the Software and of all of Your rights under this Agreement to another party if and only if all of the following conditions have been met: (a) the transfer includes all components and parts of Wacom Product, if the Software has been provided bundled with Wacom Product, including all printed materials, at least one copy of all Third-Party Software with all copyright, patent, trademark, and attribution notices retained, any other warranties applicable to the Wacom Product, and all of Your rights and obligations under this Agreement, (b) You do not retain any copies of the Software or any portion thereof on any media or computer, and (c) the party receiving the Software reads, understands, and agrees to accept the terms of this Agreement. Any transfer, assignment, or delegation of any of Your rights or obligations under this Agreement in violation of this paragraph is void and of no effect.|
|2.4||Ownership. The Software is licensed, not sold, to You for use solely in compliance with the terms of the Agreement. Wacom and/or its affiliates or licensors will and do retain all right, title and interest in and to the Software and any and all patent, copyright, trademark, trade secret, and any other intellectual property or industrial rights in and to or relating to the Software, including any modifications, improvements, updates, and derivative works thereof. Wacom reserves all rights and interests in and to the Software not expressly granted to You under this Agreement, and You do not acquire any other rights, express or implied, in the Software other than those rights expressly granted under this Agreement.|
|2.5||No Support. Wacom has no obligation to provide technical support, maintenance, upgrades, updates, modifications, or new releases under this Agreement. Any support, maintenance, upgrades, updates, modifications or new releases may be provided to You by the Sub-Licensor, if included in a separate agreement between you and the Sub-Licensor.|
|2.6||Updates. Wacom, at its discretion, may make available to You, either directly or indirectly, any updates or upgrades to the Software. The terms of this Agreement will govern any such update or upgrade provided by Wacom to You that replaces, supplements, modifies, or enhances the Software, except that if such upgrade or update is accompanied by a separate set of terms, those terms will govern to the extent of any conflict with or terms that are in addition to this Agreement.|
3. WARRANTIES AND REMEDIES
|3.1||Limited Warranties. Wacom warrants that the Software, when used in accordance with the Documentation and the terms and conditions of this Agreement, will materially perform in accordance with the Documentation for a period of one (1) year from the date the Software is first acquired by You (“Warranty Period“). If applicable law requires a longer warranty period, then Wacom will honor the minimum period required by applicable law. This limited warranty is offered by Wacom only, is not applicable to the Third-Party Software, and is not binding on any third party affiliated with the Third-Party Software. In the event that the Software does not comply with the foregoing warranty during such Warranty Period, then Wacom shall make commercially reasonable efforts to correct such non-compliance by repairing or replacing the Software at no additional charge to You. The Software is not fault tolerant and is not designed, permitted, or intended for uses related to high risk activities. No oral or written information or advice provided by Wacom, its agents, or any distributors or retailers of the Software or any Bundled Wacom Product will create any warranty or in any way increase the scope of the warranties expressly provided by Wacom under this Agreement. This paragraph states the entire liability and obligation of Wacom, and Your sole and exclusive remedy in the event that the Software does not comply with the foregoing warranty. Wacom does not warrant that: (a) the Software will meet Your requirements, (b) the Software will be compatible with or operate on the computer or other device on which You install it, or (c) any defects in the Software will be corrected, or that the operation of the Software will be uninterrupted or error-free. This Agreement contains no warranties from Wacom for any Wacom Products, which are subject to Wacom’s standard hardware warranty (if any) applicable thereto. Wacom will have no warranty obligations under this paragraph if such non-compliance is caused by unauthorized use of the Software, abuse, misuse, alteration, neglect, or accidental damage of the Software or any repair or modification of the Software not performed by Wacom. Replacement or repair of Software does not extend its warranty period beyond the original Warranty Period.|
|3.2||Disclaimers. Other than the express warranties contained in this Agreement, WACOM MAKES NO, AND HEREBY DISCLAIMS ALL, OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND WITH RESPECT TO THE SOFTWARE AND/OR ANY THIRD-PARTY SOFTWARE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WACOM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND/OR ANY THIRD-PARTY SOFTWARE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. IF YOU ARE A CONSUMER (A USER OF THE SOFTWARE AND/OR THIRD-PARTY SOFTWARE FOR PERSONAL PURPOSES AND NOT FOR BUSINESS, TRADE OR PROFESSIONAL PURPOSES), THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU BASED ON THE APPLICABLE LAWS OF THE JURISDICTION IN WHICH YOU RESIDE.|
5. GENERAL TERMS
|5.1||Law and Venue. This Agreement and all matters arising out of or relating to this Agreement will be governed by the internal laws of Japan without giving effect to any choice of law rule. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. In the event of any controversy, claim, or dispute between the parties arising out of or relating to this Agreement or the Software, such controversy, claim, or dispute shall be exclusively settled by arbitration in Japan by the Japan Commercial Arbitration in accordance with the Administrative and Procedural Rules for Arbitration under the UNCITRAL (United Nations Commission on International Trade Law). License consents to and agree not to contest the settlement in arbitration set for the in this Section 5.1.|
|5.2||Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY AND ALL INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, USE OR COST OF SUBSTITUTE PROCUREMENT, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 5.2 AND IN THE OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH WACOM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. WACOM’S PRICING OF THE SOFTWARE AND ANY WACOM PRODUCTS REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN. WACOM’S LIABILITY UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THE SOFTWARE SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU FOR THE SOFTWARE OR ANY WACOM PRODUCT BUNDLED WITH THE SOFTWARE, AND IN NO EVENT SHALL EXCEED THE AMOUNT OF FIVE THOUSAND U.S. DOLLARS (U.S.$ 5,000). YOU ARE REQUIRED TO KEEP THE INVOICE OR ANY OTHER DOCUMENTS WHICH PROVE THE AMOUNT YOU ACTUALLY PAID FOR THE WACOM PRODUCT. NOTWITHSTANDING THE ABOVE, TO THE EXTENT PROHIBITED BY APPLICABLE LAW, NOTHING IN THIS LICENSE AGREEMENT LIMITS WACOM’S LIABILITY TO YOU IN THE EVENT OF: (i) DEATH OR PERSONAL INJURY TO THE EXTENT RESULTING DIRECTLY FROM WACOM’S NEGLIGENCE OR THAT OF ITS EMPLOYEES OR AGENTS; OR (ii) ANY FRAUDULENT ACT OR OMISSION OF WACOM OR THAT OF ITS EMPLOYEES OR AGENTS; OR (iii) TO THE EXTENT ARISING OUT OF ANY WILLFUL OR GROSSLY NEGLIGENT MISCONDUCT ON THE PART OF WACOM..|
|5.3||Severability. If any provision of this Agreement is held to be illegal, invalid, or otherwise unenforceable, such provision will be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect.|
|5.4||Compliance with Laws. You will comply fully with all applicable laws and regulations, including export laws and local laws of the country or region in which You reside or use the Software. Without limiting the generality of the foregoing, You will not, and You will require Your representatives not to, export, direct or transfer the Software, or any direct product thereof, to any destination, person or entity restricted or prohibited by the applicable law.|
|5.5||Entire Agreement; General. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between You and Wacom. Any heading, caption, or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. The waiver by either party of any default or breach of this Agreement may only be made in writing and will not constitute a waiver of any other or subsequent default or breach.|
|5.6||Inclusion of Third-Party Software, Including Open Source Software. Third-Party Software components listed below will be installed when you install the Software, and may be used when you run the Software. Such Third-Party Software is governed by separate license terms and conditions, and not by the foregoing provisions of this Agreement unless expressly stated otherwise. Such separate license terms and conditions, as well as other information regarding Third-Party Software components, are set forth below:
|5.7||Compliance with Third Party Software Licenses
In accepting this Agreement, You accept the terms of the licenses identified in Section 5.6, and acknowledge that You are responsible for fulfilling all obligations of third party software licenses when using and/or distributing the Software. You shall defend, indemnify and hold harmless Wacom, its affiliates, and their officers, directors, employees, and representatives (“Wacom Indemnitees”) from and against any claim based on the misuse of third party software components or violation of third party software licenses by You.
BY CLICKING ON THE “I ACCEPT” BUTTON BELOW, YOU ACKNOWLEDGE THAT (1) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (2) YOU AGREE TO BE BOUND BY THIS AGREEMENT, (3) THE INDIVIDUAL SO CLICKING HAS THE POWER, AUTHORITY, AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOU AND, (4) BY SO CLICKING, THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS OF YOU.
© 2013 Wacom Co., Ltd. All rights reserved