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This Technology Licensing Agreement
(the "Agreement") is entered into as
of as of the date accepted
by the Licensee (the "Effective Date
") by and between Wipro Ltd., having its
Registered offices at Dodda Kanelli, Sarjapur
Road, Bangalore 560 035, India (hereinafter "Licensor"
which expression shall include its successors
and assigns) and Licensee which expression shall
include the Party agreeing to the terms and conditions
of this Agreement and its successors and assigns.
Licensor and Licensee are sometimes referred to
jointly as "the Parties", and singularly
as "Party".
RECITALS
WHEREAS, Licensor designs, develops,
licenses certain software and hardware technologies
which are "PCL 6 Laser
Printer Drivers for Windows 2000"
('Licensor Technology') WHEREAS, Licensee evaluates
such software and hardware technologies, and designs;
WHEREAS, Licensee desires to
obtain restricted license of the Licensor Technology
for the purposes set forth herein i.e. technical
evaluation ('Evaluation'), and also plans to consider
other products of the Licensor in future;
WHEREAS, Licensor is capable
of and may agree, for a consideration, to undertake
certain additional developments to customize,
port, test, debug and validate the Licensor Technology
as a physical implementation to create or aid
in creating the Licensee Test ICs or Test Systems.
NOW, THEREFORE, in consideration
of the above and mutual covenants set forth below,
the Parties agree as follows:
1. License Grant
and Restrictions
Subject to the terms of this
Agreement and Licensee's payment of all sums owed
to Licensor under this Agreement, Licensor grants
to Licensee, and Licensee hereby accepts, a non-exclusive,
non-transferable, fee-bearing copyright and patent
license for use of the Licensor Technology by
the Licensee subject to the rights and restrictions
as below:
1. 1. A license to use the Licensor
Technology at one location and only on any one
computer, at any time for a period of Two (2)
months from the date the complete deliverables
are made available to the Licensee for the purposes
of installation and Evaluation only;
1.2. Licensee will not post Licensor Technology
on internal or external bulletin boards, web sites
or other publicly accessible computer systems;
1.3. Licensee shall not have the right to commercially
use, nor the right to make translations of, nor
retarget, modify, make derivatives of, reverse
engineer, decompile the Licensor Technology or
parts thereof unless the Licensee signs a Technology
Licensing Agreement with the Licensor, excepting
the right to customize the Licensor Technology
to the extent permitted by Licensor;
1.4. Licensee will not have the rights to disclose,
sublicense, distribute, rent lease, transfer,
use or allow access to the Licensor Technology
to any external parties including but not limited
to contractors or third part manufacturers without
the prior written consent of Licensor;
1.5. The restricted use condition will apply to
all divisions, subsidiaries, locations and employees
of Licensee.
1.6. Except as expressly set forth in this Section
1, Licensor does not by implication, estoppels
or otherwise grant any other license under this
Agreement. All rights not specifically granted
under this Agreement is expressly withheld by
Licensor.
1.7. Licensee shall indemnify and hold the Licensor
harmless against any damages, liabilities (including
reasonable attorney fees) incurred by Licensor
and shall defend any claim, suit or proceeding
based on an infringement allegation arising from
use of Licensee's non-commercial use of the Licensor
Technology.
1.8. Licensee shall hold all Licensor's proprietary
information in strict confidence, and shall not
divulge the same to any unauthorized person. This
includes any information which Licensor designates
as "Confidential Information", including,
without limitation, business activities and operations,
trade secrets, technical information, etc. This
obligation shall survive termination of the contract.
2. Limited Warranty
and Disclaimer
2.1. LICENSOR DOES NOT WARRANT
THAT THE FUNCTIONS CONTAINED IN THE LICENSOR TECHNOLOGY
OR ANY CUSTOM DEVELOPMENT UNDERTAKEN BY THE LICENSOR
WILL MEET LICENSEE'S REQUIREMENTS, OR THAT THE
OPERATION OF THE LICENSOR TECHNOLOGY WILL BE ERROR
FREE, OR THAT DEFECTS IN THE LICENSOR TECHNOLOGY
WILL BE CORRECTED.
2.2. THE LICENSOR TECHNOLOGY
IS PROVIDED "AS IS" WITHOUT ANY OTHER
WARRANTY, EXPRESSED OR IMPLIED, INCLUDING BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON
INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE AND THE ENTIRE RISK AS TO
THE QUALITY AND PERFORMANCE OF THE LICENSOR TECHNOLOGY
WITH THE LICENSEE.
3. Limitation
of Liability
IN NO EVENT WILL LICENSOR BE
LIABLE FOR ANY DIRECT CONSEQUENTIAL, INCIDENTAL,
OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION,
ANY LOSS OF DATA, PROFITS OR SAVINGS, DAMAGES
FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER
FAILURE OR MALFUNCTION OR ANY OTHER COMMERCIAL
DAMAGES OR LOSSES ARISING OUT OF THE USE OF, OR
INABILITY TO USE, THE LICENSOR TECHNOLOGY, EVEN
IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, OR CLAIM BY ANY THIRD PARTY.
IN NO EVENT SHALL THE LICENSOR BE LIABLE FOR ANY
DAMAGES IN EXCESS OF ONE (1) HUNDRED US DOLLARS.
4. Intellectual
Property Rights and Non-Compete
5.1. All Intellectual Property
rights, that each party owns as of the date of
this Agreement and Intellectual Property rights
that are developed or acquired by each party hereafter
outside the scope of this Agreement, shall remain
the property of such party and no license is granted
or implied, other than as expressly referred to
or granted herein.
5.2. The Licensee is prohibited from developing
hardware and software technology similar to the
Licensor Technology in function with reference
to the Licensed Technology but will not be prohibited
from licensing similar technology from alternate
sources.
5.3. The parties acknowledge that Intellectual
Property and Employees of each party comprises
valuable assets of the respective parties, and
that breach by either party of the terms hereof
would result in substantial harm and irreparable
injury to the other party. Therefore, both parties
agree and hereby consent to the entry of an injunction
against it in the event of its actual or threatened
breach of its obligations hereunder, and acknowledges
such relief shall be in addition to such other
and further relief as may be available to that
party in law or in equity.
5. Termination
6.1. This Evaluation License
is effective until the earliest of the following
events:
a. Terminated by Licensor for the Licensee's material
breach of the Agreement; this shall include a
default on payment of any licensing fee; or
b. Two (2) months from the date all Licensor Technology
is handed over to the Licensee
c. Licensee makes Illegal Use (which shall mean
any use of the Licensor Technology which is not
in conformity with, or directly against, the terms
of this agreement, and shall include any defaults
in payments due to the Licensor by the Licensee.
of the Licensor Technology, or is found using
the Licensor Technology for any purpose that is
prohibited by law).
6.2. Licensor has the right to terminate the license
with immediate effect if Licensee fails to comply
with any of the terms of this Agreement;
6.3. Licensor may terminate the agreement if Licensee
terminates its business activities or becomes
insolvent, admits in writing its inability to
pay its debts as they mature, makes an assignment
for the benefit of creditors, or becomes subject
to direct control of a trustee, receiver or similar
authority.
6.4. Upon such termination, Licensee will destroy
all copies of the Licensor Technology in its possession
and certify as such and hand over all media and
documentation for the Licensor Technology to the
Licensor.
6. Miscellaneous
Provisions
7.1 This agreement shall be governed
by and construed in accordance with the Laws of
India excluding its conflict of law principles.
Any dispute which cannot be amicably settled by
the parties may be submitted, by one of the parties,
to arbitration under the Arbitration and Conciliation
Act 1996. The place of Arbitration shall be Bangalore,
India. Both parties agree that the results and
awards of any such arbitration shall (unless a
mistake can be shown to have been made in law)
be final and binding on both parties. The Arbitrator
shall, be agreed to by the parties. Failing which,
both parties shall appoint one Arbitrator each
and the third Arbitrator shall be decided upon
by the two Arbitrators. Both parties also agree
that the Arbitrator shall have no power to award
any exemplary , punitive or indirect damages.
Each party will promptly pay its share of all
arbitration fees and costs (provided that such
fees and costs shall be recoverable by the prevailing
party as determined by the arbitrator). If a party
fails to pay such share promptly upon demand,
the arbitrator shall, upon written request by
the other party, enter a final and binding decision
against the non-paying party for the full amount
of such share, together with an award of attorney's
fees and costs incurred by the other party in
obtaining such decision, which decision may be
entered in any court of competent jurisdiction.
7.2 If any of the above provisions
are held to be in violation of the applicable
law, void, or unenforceable in any jurisdiction,
then such provisions are herewith waived or amended
to the extent necessary for the license to be
otherwise enforceable in such jurisdiction. However,
if in Licensor's opinion, deletion or amendment
of any provision of the license by the operation
of this section unreasonable compromises the rights
or increases the liabilities of the Licensor,
Licensor reserves the right to terminate the license.
7.3 Licensee agrees to implement reasonable measures
to ensure compliance with the intended use of
the software authorized by this license. Licensor
reserves the right to perform a compliance audit
of Licensee's use of the Software, including its
compliance with Confidentiality obligations, upon
reasonable notice to the Licensee.
7.4 Neither party will incur
any liability to the other party on account of
any loss or damage resulting from any delay or
failure to perform all or any part of this Agreement
if such delay or failure is caused, in whole or
in part, by events, occurrences, or causes beyond
the reasonable control and without negligence
of the parties. Such events, occurrences or causes
will include, without limitation, acts of God,
strikes, lockouts, riots, acts of war, earthquakes,
fire and explosions, but the inability to meet
financial obligations is expressly excluded.
7.5 Wipro may resort to injunctive relief or equitable
remedies under appropriate courts of law, without
the requirement of posting of bonds.
7.6 Sections of the Agreement that by their very
nature, survive termination or expiration, shall
survive expiration or termination, but no action
shall lie against Wipro for breach of this Agreement
more than one year after the cause of action arose.
.
7.7 The failure by any party to enforce any of
its rights shall not be deemed a waiver of such
or any other right, including the right to enforce
a subsequent breach of the same obligation.
8. Entire
Agreement
By stating its approval of this
Agreement, the Licensee acknowledges that it has
read and understood this Agreement and is the
complete and exclusive statement of the Licensee's
agreement with the Licensor which supersedes any
prior written or oral agreements or understandings
relating to the subject matter of this Agreement.
Licensee acknowledges and agrees that it has agreed
that the terms and conditions of this Agreement
and that any provision contained herein with respect
to which an issue of interpretation or construction
arises shall not be construed to the detriment
of the drafter on the basis that such party or
its professional advisor was the drafter.
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