This Agreement made this 5th day of May 2007 (the "Effective Date")
By and Between:
ImageMAKER Development Inc. (“ImageMAKER”),
a British Columbia incorporated company, having its
principal place of business at
416 - 6th Street, Suite 102, New Westminster, British Columbia, Canada.
and
___________________________,
known hereinafter as the "Client" or the “Customer", having its principal place of business at ________________________________________________________________, known hereinafter as the "Client Site".
1.1 ImageMAKER Development Inc. owns, develops, licenses, distributes, and holds the exclusive worldwide rights to various software products, including the software product Image Maker Discovery Assistant.
2.1 ImageMAKER Discovery Assistant (the “Product”) is a set of individually licensed software components that provide Image Viewing, Image Creation, and Image Management support.
3.1 This License Agreement pertains to all licensed ImageMAKER Components, including the program executables, object code libraries, source code (if provided), program documentation, and modifications and/or recompilations of the source code.
3.2 In exchange for the consideration described in paragraph 4 hereof, ImageMAKER hereby grants to Client a perpetual, license to use, copy, publicly display, publicly display the licensed ImageMAKER Component Objects so long as these objects are used at the Client Site on the Computer specified in the Discovery Assistant / About box.
4.1 In consideration for the license granted in paragraph 3 hereof, Client hereby agrees to pay $ 5,000.00 USD to license the following ImageMAKER Component Objects:
ImageMAKER Discovery Assistant for Windows ___ 32- bit Object Code, Server Rendering Utility Component Licensed for use on the following computer system _______________________
(enter computer name)
(for up to 200,000 conversions.)
Client hereby agrees to pay this amount plus any applicable taxes in full to ImageMAKER, upon signing this Agreement. ImageMAKER agrees to transfer the Product to Client, via electronic mail, immediately upon receipt of a copy of this Agreement signed by Client and all funds payable hereunder.
5.1 PRODUCT CODE AND DERIVATIVE WORKS:
Client agrees to treat the source/object code licensed to it under this agreement with the same level of protection and secrecy it affords its own proprietary software materials, source/object code and the like.
5.2 LIMITED WARRANTY:
ImageMAKER warrants that the product and its use do not infringe on any patent, copyright or trade secret of any third party. ImageMAKER indemnifies and holds the Client harmless of any third party claims to copyright, trademark or patent infringement related to the Product.
OTHER THAN THE FOREGOING WARRANTIES, IMAGEMAKER DEVELOPMENT INC. MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IMAGEMAKER DEVELOPMENT INC. FURTHER RESERVES THE RIGHT TO MAKE CHANGES TO THE SPECIFICATIONS OF THE PRODUCT WITHOUT OBLIGATION TO NOTIFY ANY PERSON OR ORGANIZATION OF SUCH CHANGES.
5.3 LIMITATION OF LIABILITY:
The Customer's sole remedies are set forth in the warranty clause above. In no event will ImageMAKER be liable for any special, incidental or consequential damages even if ImageMAKER has been advised of the possibility of the same.
5.4 PRIORITY 3 LEVEL SUPPORT:
In consideration of Client paying 20% if the license fees paid by Client according to Section 4.1 of this Agreement, up to eight (8) hours of product support will be provided during a period of three hundred and sixty-five (365) days from the signing date of this Agreement for all Product licensed under this Agreement. Any additional support requested by Customer will be provided at $150.00 USD per hour. Product Support provided to Client includes:
5.4.1 Telephone Technical Support will be provided to Client Monday to Friday, excluding Canadian public holidays, during the hours of 9AM to 5PM Pacific Time to assist Client in resolving technical problems experienced by Client with the Products.
5.4.2 Product fixes will be provided to Client as required to repair Product features that do not function according to Product technical specifications as published by ImageMAKER, except in cases where Client has modified the Product (“Client Modified Product”). Client shall notify ImageMAKER in writing of each problem that occurs in Product. For each occurrence of a Problem for which ImageMAKER receives notification from Client, ImageMAKER will commence work no longer than four (4) business days after receipt of notification and will work continuously to create a resolution until a repair (“Fix”) is made. Such Fixes will be supplied to Client for implementation without delay.
5.4.3 Product enhancements will be provided to Client at ImageMAKER’s discretion as and when it deems necessary.
5.4.4 Client access to ImageMAKER Web Site to provide delivery of Product fixes and enhancements as required.
5.5 EXPERT TESTIMONY:
In the event ImageMAKER is required to provide a deposition to any party with regard to the behavior and operation of the ImageMAKER Discovery Assistant product as used by the customer, the Client will pay a retainer to cover all reasonable costs in advance. Such costs, include, but are not limited to, airfare, fees for lodging, car rental fees and/or travel expense, copying charges, and expenses associated with obtaining records.
5.5.1 ImageMAKER accepts no responsibility for damages, if any, suffered by any third party as a result of decisions made or actions based on ImageMAKER’s deposition.
6.1 TERM:
The term of this agreement will take effect upon the date of the execution hereof, herein referred to as the Effective Date, and will continue until terminated in accordance with this Agreement.
6.2 LICENSE TERMINATION:
This Agreement shall terminate upon the breach of any term of this Agreement by the Customer.
6.2.1 Surviving Obligations upon termination:
Termination of this Agreement shall not relieve either party of their obligations under paragraph 5.1 (Product Code and Derivative Works), or relieve Client of any obligation to pay for Units of Product installed prior to such termination.
6.2.2 Required Actions of client upon termination:
Upon termination of this Agreement, Client shall cease using the Product and take all appropriate steps to remove the Product from Client’s systems.
7.1 GOVERNING LAW:
This Agreement shall be governed by the laws of the Province of British Columbia. If any provision of this Agreement is found void, invalid, or unenforceable, it will not effect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. In the event any remedy herein is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth herein shall remain in full force and effect. This agreement may be modified only in writing by the Customer and an authorized representative of ImageMAKER. Reasonable attorneys' fees and court costs shall be awarded to the prevailing party in any action brought in connection with an alleged breach of the terms of this Agreement.
7.2 ACCEPTANCE OF AGREEMENT:
The licensed use of the Product is expressly conditioned upon the Customer's acceptance of these terms. ImageMAKER's acceptance of these terms is represented by shipment of the Product.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the day and year first referenced above.
Date: _______________ Date: _______________
IMAGEMAKER DEVELOPMENT INC. customer name.
_____________________________ _______________________________
Signature Signature
_____________________________ ________________________________
Name Name
_____________________________ ________________________________
Title Title