Sample Commercial Publishing License

Publish and refresh .IOK files to paying clients or subscribers

Below is a model copy of a Visokio Commercial Publishing license.This license is an addition to the Omniscope restricted End User Licensing Agreement (EULA) and removes the restriction on Commercial Distribution contained in Section 2 of the restricted EULA. Once we agree to grant your organisation a Commercial Publishing license, you will be given new license keys to activate your Omniscope publishing installations. Re-activating with these new keys will change the notices on your installation and files to indicate that you are now licensed to distribute IOK files commercially, with rights to auto-refresh to paying clients via their free Viewers.

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VISOKIO COMMERCIAL PUBLISHING LICENSE AGREEMENT

1. BY THIS AGREEMENT, as of ______, Visokio Limited (referred to as "Licensor") agrees to grant, and __________________ (referred to as "Licensee") agrees to accept, on the following terms and conditions, for valuable consideration described in Paragraph 7 and Schedule A of this Agreement, a nonexclusive license to use each Licensed Program as set forth in this Agreement (including any schedules, exhibits, or appendixes).
   
   Definitions.
   
   The following terms are defined for the purposes of this Agreement as follows: a. “Commercial Distribution” means the distribution of Omniscope formatted files, (with or without the file extension “.iok”) outside of Licensor’s organization, and includes but is not limited to distribution for a fee or as part of a subscription service or other commercial service.

   b. “EULA” means the End User License Agreement for Visokio Software previously entered into between Licensor and Licensee.

   c. "License Fee" means that fee, as defined in Paragraph 7, paid for the use of the Licensed Program.

   d. "Licensed Program" means the Visokio software product(s) enumerated in Schedule A attached to this Agreement.

   e. "Use" means (i) copying any portion of any Licensed Program only into Licensee's computer for processing, (ii) consulting any Licensed Program in printed form in support of this processing, and (iii) copying for archival or emergency restart purposes.
   
   
   
2. Term. This Agreement is effective as of the date stated above. Licensor may terminate this Agreement and any license granted under it if Licensee fails to comply with any of its terms and conditions. Otherwise, the license granted to each Licensed Program remains in force until Licensee stops using that Licensed Program or until Licensor terminates this Agreement or any license because of Licensee's failure to comply with any of the terms and conditions of this Agreement.
3. Nonexclusive License.
   
   
   a. License for Commercial Distribution. In addition to the rights previously granted to Licensee by the EULA, Licensor hereby grants to Licensee a nonexclusive license for Commercial Distribution.

   b. Reservation of Rights. Notwithstanding the foregoing, this Agreement does not give Licensee a license or right to distribute or sell the Licensed Program or any modification of it or to use the Licensed Program or any portion of it for assistance in the preparation for sale or distribution of any computer program. This Agreement does not grant a license or right to use the Licensed Program on any computer or computer system other than Licensee's. Licensor reserves all rights not expressly granted by Licensor under this Agreement.

4. Confidential Information. Licensee shall treat the Licensed Programs as trade secrets and proprietary know-how belonging to Licensor that is being made available to Licensee in confidence solely on the basis of a confidential relationship between Licensor and Licensee. Licensee agrees to hold the Licensed Programs in trust and agrees not to use, print, copy, provide, or otherwise make available, in whole or in part, any portion of a Licensed Program or modifications of it or related material except in accordance with this Agreement. Licensee agrees that it will not reconstruct in whole or in part the object code, source code, or algorithms in the Licensed Programs. Licensee agrees to treat the confidentiality of the Licensed Programs with reasonable care, not less than that with which it treats its own confidential or proprietary information.
5. Security. Licensee agrees not to provide or otherwise make available any Licensed Programs in any form to anyone other than permanent employees of the Licensee who are obligated by a written, executed agreement to maintain in confidence third party trade secrets and know-how, licensed or otherwise, in the possession of Licensee, without prior written consent of an officer of Licensor. Licensee agrees to advise all employees having access to the Licensed Program of the terms and conditions of this License, including the proprietary and confidential nature of the Licensed Program.
6. License Fee.
   

   a. As compensation for the License granted by this Agreement, Licensee shall pay to Licensor the license fee or fees stated in Schedule A, attached ("License Fee").

   b. The License Fee specified in Schedule A is exclusive of any tariff, duty, or tax, however designated, levied or based, including, without limitation, any sales or use taxes in any state and local privilege or excise taxes based on gross revenue, on (I) either this Agreement, the Licensed Program and/or Licensee's use of it, or (ii) any materials or supplies agreed to be furnished by Licensor under this Agreement, Licensee agrees to pay and be responsible for any and all of those taxes and levies (exclusive, however, of taxes based on the Licensor's net income). Licensor shall have the right, but shall have no obligation, to pay any of those taxes or levies directly, in which event Licensee shall reimburse Licensor, on demand, the amount so paid by Licensor. In no event does the exercise or non-exercise by Licensor of the foregoing right relieve Licensee of its obligations under this Agreement or impose any liability whatsoever on Licensor.

7. Termination.
   

   a. Grounds for Termination. Licensor shall have the right to terminate this License immediately if:
   
   (i) Licensee fails to perform any obligation required of Licensee under this License, and fails to cure such breach within 10 days of written notice of such breach;

   (ii) Licensee makes any assignment of its business for the benefit of creditors;

   (iii) A receiver, trustee in bankruptcy, or similar officer is appointed to take charge of all or part of Licensee's property;

   (iv) Licensee files a petition in bankruptcy, or an involuntary petition in bankruptcy is filed against it that is not dismissed within 60 days; or

   (v) Licensee is adjudged bankrupt.
   
   b. Effect of Termination
   
   (i) Within 30 days after Licensee has discontinued the use of any Licensed Programs or within 5 days after Licensor has terminated any license because of Licensee's failure to comply with any terms of this Agreement, Licensee will certify, in writing, to Licensor that the original and all copies, in whole or in part, in any form, including partial copies and modifications, of the discontinued or terminated Licensed Program or Programs have been transmitted to Licensor or have been destroyed.
   
   (ii) In the event of a termination by Licensor, Licensor or owner shall have the right to repossess all Licensed Programs and modifications of them and related materials and shall have the right to enter on Licensee's premises for the purpose of repossession, and Licensee hereby consents to that entry.

8. Title. Licensor retains title to and ownership of the Licensed Program, including all portions and all copies of it at all times.
9. DISCLAIMER OF WARRANTY.
   

   THE LICENSED PROGRAM IS PROVIDED "AS IS." LICENSOR DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SOFTWARE LICENSED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. REGARDLESS OF ANY OTHER PROVISION OF THIS AGREEMENT, LICENSOR ADDITIONALLY DISCLAIMS ALL OBLIGATIONS AND LIABILITIES ON THE PART OF LICENSOR FOR DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, AND CONSEQUENTIAL DAMAGES, ATTORNEYS' AND EXPERTS' FEES, AND COURT COSTS (EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING FROM OR IN CONNECTION WITH THE USE OF THE SOFTWARE LICENSED UNDER THIS AGREEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.

10. Assignment and Sublicensing. Licensee shall not (either directly or indirectly) sell, transfer, sublicense, assign in whole or in part, convey, pledge, or otherwise dispose of this Agreement, the Licensed Program, or any right, duty, or license granted under this Agreement, without the prior express written consent of Licensor, which may be refused in the sole and absolute discretion of Licensor. Any attempted assignment made without the prior express written consent of Licensor is null and void and is a material breach of this Agreement.
11. Remedies.
    

    a. The parties acknowledge and agree that, if Licensee breaches any of its obligations under Paragraphs 4, 8, or 11 of this Agreement, Licensor would incur irreparable harm and damage that could not be fully compensated with monetary damages. Accordingly, if Licensee breaches any provision of paragraphs 4, 8, or 11 of this Agreement, Licensor, in addition to monetary damages, shall be entitled to specific performance of Licensee's obligations under those paragraphs and injunctive relief against any further violations of those paragraphs.

    b. Licensor's sole obligation with respect to a breach by Licensor of any representation, warranty, or obligation under this Agreement is to correct that breach.

    c. The parties to this Agreement understand and agree that fees to be received by Licensor under this Agreement are based solely on the value of the right to use the Licensed Program granted to Licensee and that it is impractical and extremely difficult to fix the actual damages, if any, that may result from any failure in connection with its intended use. It is therefore further agreed that if any liabilities are imposed on Licensor for any reason whatsoever, including, but not limited to, any liabilities resulting from Licensor's inability to correct any breach of this Agreement, the maximum aggregate amounts payable by Licensor for all liabilities under this Agreement will not exceed the aggregate amount of fees received by Licensor before that breach under Paragraph 7 for the portion of the software giving rise to that liability.

12. Independent Contractor Status. Nothing in this Agreement is intended or to be construed to make Licensor and Licensee partners or joint venturers, or to make the employees, agents, or representatives of Licensor into employees, agents, or representatives of Licensee, or the employees, agents, or representatives of Licensee into employees, agents, or representatives of Licensor. The relationship of Licensor and Licensee to each other shall at all times be that of an independent contractor. No party to this Agreement shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
13. Governing Law. This Agreement and any dispute arising from the relationship between the parties to this Agreement, shall be governed and determined by California law, excluding any laws that direct the application of the law of another jurisdiction. Any dispute that arises under or relates to this Agreement (whether contract, tort, or both) shall be resolved in superior court in Los Angeles, California, and the parties expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere.
14. Binding Effect. This Agreement is binding on and inures to the Licensor and its successors, assigns, and legal representatives. This Agreement is binding on and personal to Licensee and may not be assigned by Licensee without Licensor's prior written consent.
15. Export Controls. The Licensed Program may be subject to the export control laws of the United States, including the Export Administration Act of 1979 (EAA) (50 USC App §§2401-2420) and its related regulations. Licensee agrees to obey all such laws and to hold harmless Licensor for Licensee's failure to properly do so.
16. Notices. Any notice required or permitted under this Agreement will be deemed given on delivery to the party to whom it is intended at its address of record. The record addresses of the parties are as follows:
17. Waiver of Breach. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by this Agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor will any waiver constitute a continuing waiver unless the writing so specifies.
18. Attorney Fees and Costs. In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party will be awarded reasonable attorney fees, together with any costs and expenses, to resolve the dispute and to enforce the final judgment.
19. Severability. If any provision of this Agreement contravenes any law or valid regulation of any regulatory agency or self-regulatory body having jurisdiction over either party, or if any provision is otherwise held invalid or unenforceable by a court or other body of competent jurisdiction, then each such provision shall be automatically terminated and performance of that provision by both parties waived. However, if that provision is reasonably considered by either party to be an essential element of this Agreement, and the parties are unable to agree on an alternative provision within 90 days after the invalidation of the provision in question, this Agreement may be terminated in its entirety at the option of the party reasonably considering the contravening provision to be an essential element of this Agreement. That termination shall be effective when that party gives notice of that termination to the other party.
20. Headings. The captions of the sections of this Agreement are inserted for convenience only and are not intended to be a part of this Agreement.
21. Entire Agreement. This Agreement and all other agreements and exhibits referred to in this Agreement constitute the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this Agreement and supersede all prior and contemporaneous understandings or agreements of the parties. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty outside those expressly set forth in this Agreement.

IN APPROVAL OF THIS AGREEMENT, the parties' respective officers have duly executed this Agreement.

By: _________________________

VISOKIO LIMITED

By: _________________________