Ultramarine, Inc.
MINIMAL MOSES LICENSE AGREEMENT
GENERAL:
This license is entered into by and between
Ultramarine, Inc.
3100 South Gessner, Suite 325
Houston, Texas 77063
Ultramarine may terminate this license if LICENSEE fails to comply with the terms and conditions of the license and does not remedy any breach within sixty days from the date of notice of breach by Ultramarine to LICENSEE. Ultramarine may then seek its actual damages and any other remedies available at law or in equity.
Unless otherwise instructed by Ultramarine, upon termination of the license, at LICENSEE's expense, LICENSEE shall return the Software, including all related materials and copies thereof to Ultramarine, together with a certificate of compliance with this provision signed by LICENSEE's authorized representative.
PERMITTED USE:
LICENSEE is licensed to use the minimal capabilities of the MOSES program on any computer. This use is to be solely for LICENSEE's internal business purposes.
LICENSEE shall not distribute or publish the Software and/or related materials without the prior written permission of Ultramarine. All copies of the software and/or the related materials shall include any copyright notice or restrictive legend included in the original. All copies of the Software shall be and remain the property of Ultramarine or third parties from whom Ultramarine has obtained a right to market (hereafter called "Software Supplier"). LICENSEE shall not permit access to the Software by anyone other than its employees or contract employees whose job performance requires such access. "Contract employees" includes only individual independent contractors. LICENSEE shall ensure that any person permitted access to the Software shall not publish or distribute the Software through any means, including any network, time-sharing service or computer service bureau. To protect Ultramarine's rights hereunder, LICENSEE agrees to grant Ultramarine access to the Software and the right to audit any records related to the use of the Software. LICENSEE's obligations under this paragraph shall survive the termination of the remainder of this lease for a period of five years.
WARRANTY:
Ultramarine warrants that it is the owner of, or has the right to license the Software, and shall indemnify and hold LICENSEE harmless from all claims, demands, proceedings, costs, including reasonable attorneys fees, damages and expenses of any kind arising out of contention that LICENSEE's use of the Software infringes upon a patent, trademark, copyright or trade secret of any other person or entity. Ultramarine shall, at its sole option and expense, defend or settle any such claim, suit or proceeding brought against LICENSEE in connection with any such contention, provided that LICENSEE shall give sole authority in any such matter to Ultramarine. LICENSEE will provide, at Ultramarine's expense, such assistance to Ultramarine in connection with such defense as Ultramarine shall reasonably request.
If an allegation that the use of the Software infringes a patent, trademark, copyright or trade secret of any other entity or person is made, Ultramarine shall, within a reasonable time and at its sole option and expense modify or replace the code so that it becomes non-infringing, to the extent that such modification will not materially detract from performance of the Software. In the event that such modification or replacement is not possible, Ultramarine may terminate this agreement.
EXCEPT AS EXPRESSLY STATED HEREIN, ULTRAMARINE EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESSED, IMPLIED, OR STATUTORY, OF ANY KIND OR NATURE WITH RESPECT TO THE SOFTWARE AND OTHER ITEMS TO BE GIVEN BY THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In no event shall Ultramarine be liable for any indirect, special, or consequential damages such as loss of anticipated profits or other economic loss in connection with or arising out of the services provided under this agreement. This paragraph shall supersede any other paragraph of this agreement which may be deemed inconsistent with it.
MAINTENANCE:
Ultramarine provides a a Maintenance, Updates and Support ("MUS") service for this software. If you wish to have it, please contact Ultramarine for a current price. This service includes:
- Ultramarine shall attempt to keep the most recently delivered copy of the Software free from errors ("Maintenance"). Ultramarine will attempt to diagnose and correct errors as soon as possible after receipt of a complete written description of suspected errors. "Errors" occur when copies of the Software do not operate in compliance with the documentation provided by Ultramarine.
- "Updates" are alterations to the Software to modify, improve or enhance a previously supplied copy of the Software. Updates include additions made to comply with changes in industry standards or engineering codes. Updates do not include separate, stand-alone software which may be used by an analyst in conjunction with any licensed Software. Ultramarine may, at any time, create an updated copy to replace any licensed copy previously delivered and will provide updates to LICENSEE when they are made publicly available.
- "Support" is the procedure for resolving coding or processing problems that may arise from the use of the Software. Ultramarine will provide technical support services from Ultramarine's office, via mail, telephone, or telefax, 8:30 A.M. through 5:30 P.M., Houston, Texas time, Monday through Friday, exclusive of holidays. Support does not include additional services or consultation, which may be made available for an additional charge.
MISCELLANEOUS PROVISIONS:
- This license shall be governed by the laws of the state of Texas.
- This license is not assignable or transferable by LICENSEE without the prior written consent of Ultramarine. This Agreement shall be binding upon the successors of both parties.
- The terms and conditions of this license shall prevail over any printed or conflicting terms contained in LICENSEE's purchase order or any other document issued by LICENSEE, and they may be modified or waived only by a written agreement signed by the authorized representatives of both parties.
- Notices shall be deemed given on the date received and shall be sent by Telefax or Certified Mail, Return Receipt Requested, Postage Prepaid, addressed to the parties at the addresses specified above. If any notice is refused or unclaimed, notice shall be deemed received three (3) business days after the date stamped on the return receipt by the Postal Service.
- The prevailing party in any legal action based on this license shall be entitled to recover reasonable attorney's fees and court costs from the party not prevailing.
- The failure of either party to enforce any provision herein at any time shall not be construed as a waiver of that or any other provision or a forfeiture of any rights to future enforcement or remedies.
- If any one or more of the terms or provisions contained herein shall for any reason be held to be invalid, illegal, or unenforceable, that shall not affect any other term or provision and this agreement shall be construed as if such invalid, illegal or unenforceable term or provision has never been contained herein.
- With the exception of payment, neither Ultramarine nor LICENSEE shall be liable for any delay or nonperformance due to governmental regulations, hostile actions, weather, acts of God, or any other cause beyond the affected party's reasonable control. If performance is so delayed or prevented for more than ninety (90) days, either party may immediately terminate this license by written notice.
- LICENSEE acknowledges that the Software and related technical data and services (collectively "Controlled Technology") may be subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. You agree to comply with all relevant laws and will not export any Controlled Technology in contravention to U.S. law nor to any prohibited country, entity, or person for which an export license or other governmental approval is required. All Ultramarine products are prohibited for export or re-export to Cuba, North Korea, Iran, Syria and Sudan and to any country subject to relevant trade sanctions. You hereby agree that You will not export or sell any Controlled Technology for use in connection with chemical, biological, or nuclear weapons, or missiles, drones or space launch vehicles capable of delivering such weapons.
