Software License Agreement for COMFAR III
Expert
Definitions: "UNIDO"
is the United Nations Industrial Development Organization, an
international organization which is a specialized agency of the United
Nations, headquartered in Vienna, Austria.
"LICENSOR" is the
grantor of the right to use the software, the provider of the manuals
and support. UNIDO is the LICENSOR in this Agreement.
"LICENSEE" is the
purchaser of the right to use the software and payor of the license fee.
The identity of the LICENSEE is specified in the signature section
provided above.
"COMFAR III Expert"
(COMFAR) is the software along with the manuals which are the subject of
this Agreement. The software and documentation are designed to be used
by experienced trained individuals. LICENSEE undertakes to employ such
individuals in the acquisition and the operation of the software.
Payment of the fee listed above entitles the user to receive the COMFAR
computer program on diskette or CD-ROM, the manuals to operate the
program, the Protection Key, and the Manual for the Preparation of
Industrial Feasibility Studies, which is usually sold separately.
1. Grant of license. In
consideration of payment of the license fee, which is a part of the
price LICENSEE paid, LICENSOR grants to the LICENSEE, and LICENSEE
hereby accepts a non-transferable and non-exclusive license to use and
display COMFAR under the following terms and conditions:
2. Installation and use. The
license is for the use of COMFAR on a single computer by one user at a
time. Should LICENSEE wish to use COMFAR on more than one computer or
computer terminal, LICENSEE must acquire from UNIDO for each additional
computer or terminal the run-time license (protection key).
3. Ownership. This is a license
agreement and not an agreement for sale. COMFAR as well as the related
copyrights or other intellectual property rights are the property of
UNIDO. This includes any enhancements or modifications made by UNIDO to
COMFAR, and made available to the LICENSEE, with or without charge,
during the duration of this Agreement. The LICENSEE acquires no right,
title, or interest in COMFAR other than the license rights specifically
granted herein.
4. Copy restrictions: The
LICENSEE shall not make copies, in whole or in part, of COMFAR except to
the extent necessary for the LICENSEE's own use in accordance with this
Agreement and provided that such copy or copies shall remain subject to
all the terms of this Agreement and shall be clearly marked with:
"Copyright © 1994 (or other applicable year(s)), United Nations
Industrial Development Organization, All Rights reserved", to
indicate proprietary rights of UNIDO.
5. Transfer restrictions: The
LICENSEE acknowledges that the rights granted under this Agreement are
not subject to transfer and therefore agrees not to attempt to assign,
sub-license or otherwise transfer its rights under this Agreement. In
particular, the LICENSEE may not, except as provided in this Agreement
or upon prior written permission of UNIDO, use, copy, modify, merge, or
transfer copies of COMFAR.
6. Export Restrictions. The
LICENSEE shall not, without the prior written consent of the Department
of Commerce of the United States Government, export COMFAR III Expert to
any country in Group S or Z as specified in the Export Administration
Regulations of the United States Department of Commerce.
7. Interoperability. COMFAR is
designed to run on platforms (graphical interfaces) such as, WINDOWS and
MACINTOSH. In the event that LICENSEE requires technical information
regarding interoperability, LICENSOR agrees to provide such information
at the cost of LICENSEE provided that the details do not violate other
license agreements, copyrights, or reveal trade secrets.
8. Use restrictions. The
LICENSEE agrees to maintain in confidence the software and documentation
referred to as COMFAR, including the successive revised versions
thereto, and undertakes to ensure that its employees, contractors or
agents working with COMFAR shall be bound not to disclose the software
or documentation to third parties. The LICENSEE agrees to use COMFAR
solely in and for the purpose of its own activities or operations. It
may not transfer or copy COMFAR, whether to allied or associated bodies,
enterprises, firms, institutes or persons.
9. Software support by UNIDO.
UNIDO agrees to provide advice at the time of the installation of COMFAR
as may be necessitated by the particular requirements of the LICENSEE.
The advice will be provided during UNIDO's normal business hours with
the LICENSEE paying the costs associated with communication. At the
request of the LICENSEE and at its cost, including travel, UNIDO agrees
to provide initial training for the LICENSEE's personnel in the
installation and operation of COMFAR.
10. Tariffs, Duties and Taxes.
The LICENSEE shall be liable for the payment of any tariffs, duties or
taxes, however designated, levied or based on COMFAR, imposed or levied
by any government or governmental agency in respect of the use of COMFAR
by the LICENSEE. Since the software and printed materials constituting
COMFAR remain the property of UNIDO, they will benefit from the
exemptions from tariffs, duties and taxes granted UNIDO in respect of
its property and assets by the Convention on the Privileges and
Immunities of the United Nations or the Convention on the Privileges and
Immunities of the Specialized Agencies, as applicable.
11. Exclusive Rights of UNIDO and
Unauthorized Use by Third Parties.
a. UNIDO represents that it has
the right to grant the license referred to in paragraph 1;
b. If either party has
knowledge that an action, suit or proceeding arising from a claim that
COMFAR infringes any patent, copyright, alleged trade secret, or other
proprietary right has been or may be instituted against either party,
such knowledge shall be transmitted to the other party, and UNIDO agrees
to defend or settle, at its option, any such action, suit or proceeding.
In the event that a final injunction shall be obtained against the
LICENSEE's use of COMFAR by reason of infringement of a patent or other
proprietary right, or if, in the opinion of UNIDO, COMFAR is likely to
become the subject of a claim of infringement of a patent or other
proprietary right as a result of the actions of UNIDO, UNIDO, at its
option and at its expense, either shall procure for the LICENSEE the
right to continue using COMFAR, or shall replace or modify COMFAR so
that it becomes non-infringing, or shall grant the LICENSEE a credit for
COMFAR, as depreciated, and accept its return. The depreciation shall be
an equal amount per year over the life of COMFAR as established by
UNIDO. If there is such an injunction or potential claim in more than
one jurisdiction, UNIDO shall have the right to select in each
jurisdiction which of the foregoing options it shall exercise. UNIDO
shall not have any liability to the LICENSEE under any provision of this
paragraph if the infringement or claim thereof is based upon an
enhancement or modification to COMFAR made by the LICENSEE, or the use
by the LICENSEE of COMFAR in combination with other components, either
hardware or software, where such infringement would not have occurred if
COMFAR had not been used in such combination;
c. If the LICENSEE has
knowledge that the proprietary rights to COMFAR are being infringed by a
third party, such knowledge shall promptly be transmitted to UNIDO.
12. Replacement of Defective
Diskette(s) or CD-ROM(s). UNIDO will replace defective diskette(s)
when requested by the LICENSEE within a period of ninety (90) days from
the date of shipment.
13. Disclaimer of Warranty and
Limitation of Liability and of Remedies
a. COMFAR is provided "as
is" without warranty of any kind. UNIDO does not warrant, guarantee
or make any representations regarding the use or results of use of
COMFAR in terms of correctness, accuracy, reliability, currentness, or
otherwise. The LICENSEE is solely responsible for the selection of
COMFAR to achieve the LICENSEE's intended results and for the
installation of, use of, and results obtained from COMFAR. The entire
risk as to the results and performance of COMFAR is assumed by the
LICENSEE. Also excluded is any implied warranty by UNIDO, such as
merchantability and fitness for a particular purpose;
b. In no event will UNIDO be
liable for indirect, consequential, incidental or special damages
including, but not limited to, lost profits and lost savings arising out
of the use or inability to use COMFAR, even if UNIDO has been advised of
the possibility of such damages or for any claim by the LICENSEE based
on a third party claim.
c. For any claim whatsoever
related to the subject matter of this Agreement, UNIDO's liability for
actual damages, regardless of the form of action, shall be limited to
the greater of US$ 5,000 or the money paid to UNIDO for the LICENSE for
COMFAR that caused the damages or that is the subject matter of, or is
directly related to, the cause of action.
d. The LICENSEE agrees to
indemnify, defend and hold harmless, UNIDO for liability arising out of
any negligent act or omission of the LICENSEE, its employees,
contractors or agents with respect to COMFAR.
e. No action, regardless of
form, arising out of this Agreement may be brought by either party more
than two years after the cause of action has arisen, except for breach
of the provisions in paragraphs 4 (copy restrictions), 5 (transfer
restrictions) and 8 (use restrictions) in which four years shall apply.
14. Arbitration. Any dispute,
controversy or claim arising out of or relating to this agreement, or
the breach, termination or invalidity thereof, shall - unless it is
settled by direct negotiation - be settled by arbitration in accordance
with the arbitration rules established by the United Nations Commission
on International Trade Law (UNCITRAL) in effect on the date of this
agreement. The number of arbitrators shall be one. The language to be
used in the arbitrary proceedings shall be English. The place of
arbitration shall be Vienna. The parties shall be bound by any
arbitration award rendered as a result of such arbitration as the final
adjudication of any such dispute.
It is understood, however, that the
provisions of this paragraph shall not constitute or imply the waiver by
UNIDO of its privileges and immunities.
15. Privileges and Immunities.
Nothing contained in the present agreement shall be deemed to constitute
a waiver of the rights, privileges and immunities to which the UNIDO and
its personnel are entitled pursuant to the Convention on the Privileges
and Immunities of the United Nations of 13 February 1946 or of the
Convention on the Privileges and Immunities of the Specialized Agencies
of 21 November 1947, as applicable.
16. Notices. Any notice
permitted or required in connection with this Agreement shall be in
English addressed and delivered to:
In respect of LICENSEE: to its address
stated on the ORDER FORM;
In respect of UNIDO: To the Chief,
Purchase and Contracts Section, General Sevices Branch, Fields
Operations and Administration Division (FOA/AFC/GES/PAC), United Nations
Industrial Development Organization, Vienna International Centre, P.O.
Box 300, A-1400 Vienna, Austria.
17. Entry into Force, Duration,
Termination. This License Agreement shall enter into force upon
signature by the LICENSEE of the ORDER FORM, payment of the full charge,
and UNIDO's confirmation of the order, and it shall remain in effect
from the date of shipment of the order until terminated by either Party.
The LICENSEE may terminate this Agreement upon giving ninety (90) days
written notice to UNIDO along with the return of all software and
manuals. If the LICENSEE is in default with respect to any of its
obligations under this Agreement, UNIDO may issue a notice in writing of
such default. If the LICENSEE has not remedied the default within sixty
(60) days of the issuance of the default notice, UNIDO may, by written
notice to the LICENSEE terminate this Agreement. If the LICENSEE is in
breach of any of the provisions under paragraphs four (4), five (5) or
eight (8), UNIDO may terminate the Agreement with immediate effect by
written notice to the LICENSEE. Upon expiry or termination of this
agreement, all copies of COMFAR shall be returned to UNIDO.
18. This Agreement represents
the entire understanding and agreements regarding COMFAR and supersedes
any prior agreements, discussions and communications, or representations
made by the Parties.
19. Severability. Should any
portion of this Agreement be found to be inapplicable or invalid, the
rest of the contract will remain in full force. |
