HomeMy WebLinkAboutTouchShare Inc; 2014-02-03;VL/louchShaie
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TOUCHSHARE SOFTWARE LICENSE AGREEMENT
(This Agreement is to be completed and signed by both Licensor and Licensee, unless this Agreement is
incorporated as an integral part of a separate sales/purchase agreement, in which case the signatures on or other
acknowledgment of the parties regarding such sales/purchase agreement shall also constitute both Licensor's and
Licensee's acknowledgment of and agreement to the terms of this Agreement.)
This Agreement is made this 3_day of February_, 2014_ ("Effective Date"), between (i) TouchShare, Inc. ("Licensor"), a
Delaware corporation, with its principal place of business at 46 Smith Alley, Suite 230, Pasadena, Ca. 91103, and (ii)
City of Carlsbad ("Licensee"), a corporation of , or a federal, state, or local
governmental unit, with its principal place of business at
Carlsbad, California , which, intending to be legally bound, hereby agrees
as follows:
1. INTRODUCTION
1.1 Licensor owns proprietary commercial computer software products that operate TouchShare® hardware systems
or operate in conjunction with other electronic devices.
1.2 Licensee desires to obtain a license from Licensor to use such software solely in object code form and in
accordance with the Documentation and the terms and conditions of this agreement ("Agreement").
1.3 Licensor is willing to issue a license to Licensee on these terms.
2. DEFINITIONS
2.1 "Documentation" shall mean available functional specifications, reference manuals, user guides, system operation
guides and other materials supplied by Licensor to Licensee in written or machine readable form.
2.2 "TouchShare Software" shall mean the Licensor's proprietary commercial computer software products that
operate TouchShare hardware systems or operate in conjunction with other electronic devices as described in Licensor's
Documentation, together with related Documentation and including, at any given time, all previously released Standard
Enhancements and any Optional Enhancements which may be furnished to Licensee by Licensor. The term "TouchShare
Software" includes, without limitation, all software identified with TouchShare® trademarks, and any TouchShare
Software Development Kits (SDK) or Application Programming Interfaces (API). It excludes all other applications,
operating systems, and software, whether or not accessed or used with the aid of TouchShare Software.
2.3 "Standard Enhancements" shall mean those minor improvements, additions and revisions to the TouchShare
Software and/or Documentation that are furnished to Licensee at no additional fee.
2.4 "Optional Enhancements" shall mean those major improvements, additions and market-specific modules to the
TouchShare Software and/or Documentation that are furnished to Licensee at an additional fee.
TouchShare Software License Agreement
2.5 "Licensor Service Rate" shall mean the applicable hourly rates charged by Licensor for specific professional
services in effect at the time such services are performed.
2.6 "Specifications" shall mean the description of the functions performed by the TouchShare Software as set forth in
the current Documentation.
2.7 "Warranty Period" Warranty Period" shall mean a 90 day period after customer licensing of the TouchShare
Software product, which should occur no later than 60 days from the initial delivery to the customer; or such other period
of time as set forth and agreed to by both parties in the applicable purchase order accompanying this Agreement.
3. LICENSED RIGHTS
3.1 License Grant. Licensor hereby grants to Licensee, and Licensee hereby accepts from Licensor, a nonexclusive,
nontransferable license to use the TouchShare Software solely in object code form and in conjunction with the
TouchShare hardware systems or other electronic devices ftimished or approved in writing by Licensor in connection with
this License. As to each element of TouchShare Software, this license is conditioned on the payment of the applicable
fees per Section 4. Any further limitations applicable to particular TouchShare Software products, such as limitation on
the number of seats or users or duration of license term, will be referenced in the applicable sales/purchase order
accompanying this Agreement.
3.2 License Restrictions. Licensee will not copy or modify the TouchShare Software or Documentation, directly or
through others, in whole or in part, provided, however, that Licensee shall be permitted to make reasonable numbers of
back-up copies of the Documentation.
4. PAYMENTS
4.1 License Fee. In retum for the license granted in Section 3 and delivery of the TouchShare Software in object code
form. Licensee shall pay the license fee(s) in the amount(s), and in accordance with the related sales/purchase agreement
executed between Licensee and Licensor. Nothing in this Agreement (including any documents or provisions
incorporated by reference) entitles Licensor to deliver any TouchShare Software source code.
4.2 Travel Costs. If Licensor will be providing support directly to Licensee in conjunction with Licensee's use of the
TouchShare Software, and unless provided otherwise in a separate support agreement. Licensee shall reimburse Licensor
for all travel costs and expenses (including living expenses reasonably convenient to Licensee's location) incurred by
Licensor personnel in connection with training, project management and other services performed at Licensee's location
or at any other location requested by Licensee.
4.3 Other Disbursements. If Licensor will be providing support directly to Licensee in conjunction with Licensee's
use of the TouchShare Software, Licensee shall reimburse Licensor for all disbursements by Licensor to third parties that
are incurred with the prior approval of Licensee and are necessitated by the performance by Licensor of its obligations
under this Agreement.
4.4 Taxes. All amounts described in the quotation are exclusive of all federal, state, municipal or other governmental
excise, sales, value-added, use, personal property and occupational taxes, excises, withholding obligations and other levies
now in force or enacted in the future and, accordingly, the amount of all payments hereunder is subject to an increase
equal to the amount of any tax Licensor may be required to collect or pay in connection with the TouchShare Software
and related services other than any tax on the net income of Licensor.
4.5 Payment Terms. See Section 4 of the TouchShare Purchase Terms and Conditions. Should Licensor be required to
begin an action against Licensee to collect any payments due. Licensee shall pay all costs of collection, together with
interest due and reasonable fees of attomeys and other professionals.
TouchShare Software License Agreement
5. OWNERSHIP
5.1 TouchShare Software and Documentation. The components of the TouchShare Software are subject to copyrights
and other proprietary rights of Licensor. All rights, title and interest in and to the TouchShare Software, the
Documentation and any and all modifications to the foregoing which are prepared by or for Licensor shall not pass to
Licensee, but shall be the exclusive property of Licensor. Licensor shall be the sole owner of all inventions, discoveries,
improvements, or enhancements relating to the TouchShare Software (including without limitation Standard
Enhancements, Optional Enhancements, and any other computer program that constitutes a "derivative work" of the
TouchShare Software within the meaning of the definition set forth in Section 101 of the U.S. Copyright Act) whether in
written or unwritten form and which are developed by or for Licensor or Licensee, and of all methodologies, techniques
and know-how resulting from the use of the TouchShare Software by Licensee. Licensor shall retain the exclusive right
to reproduce, publish, patent, copyright, sell, license and otherwise make use of the TouchShare Software and all such
inventions, discoveries, improvements, enhancements and methodologies with respect thereto except as expressly set forth
in this Agreement. Licensee shall keep each and every item to which Licensor retains title free and clear of all claims,
liens and encumbrances except those of Licensor, and any act of Licensee, voluntary or involuntary, purporting to create a
claim, lien or encumbrance on any such item shall be void.
5.2 Other Software. The parties acknowledge and agree that the terms and conditions of this Agreement are not
intended to apply to other software, including any applications or operating systems that may be accessed or used with the
aid of TouchShare Software. All rights, title and interest in and to other software shall be owned, as applicable, by
Licensee or the respective licensors of such other software.
5.3 Unauthorized Use. Licensee agrees to notify Licensor immediately of the unauthorized possession, use, or
knowledge of any item supplied under this Agreement and of other information made available to Licensee under this
Agreement, by any person or organization not authorized by this Agreement to have such possession, use or knowledge.
Licensee will promptly furnish full details of such possession, use or knowledge to Licensor, will assist in preventing the
recurrence of such possession, use or knowledge, and will cooperate with Licensor in any litigation against third parties
deemed necessary by Licensor to protect its proprietary rights. Licensee's compliance with this Section shall not be
construed in any way as a waiver of any right by Licensor to recover damages or obtain other relief against Licensee for
any act or omission which may have resulted in the unauthorized possession, use or disclosure.
5.4 No Reverse Engineering. Licensee shall not (i) attempt to decompile TouchShare Software or reverse-engineer
TouchShare hardware systems; (ii) use TouchShare Software or TouchShare hardware systems for the purpose of
developing or improving a competing device, program, or product; nor (iii) permit others to do any of the foregoing.
6. PROPRIETARY RIGHTS
6.1 Infringement. In the event of a determination that the TouchShare Software or Licensee's use of the TouchShare
Software in accordance with the terms of this Agreement infringes any proprietary right of any third party. Licensor shall
have the option, at its own expense, to (a) obtain for Licensee the right to continue using the infringing item, (b) replace
the infringing item or modify it so that it becomes non-infringing, or (c) terminate the licensed rights granted herein and
grant Licensee a refund of all amounts theretofore paid by Licensee, including without limitation license fees and
implementation charges, less reasonable depreciation based on usage, which shall in no event be less than the result of a
straight-line computation based upon the duration of the license term.
6.2 Exclusions. Licensor shall not be liable for any alleged infringement based upon modification of the TouchShare
Software by anyone other than Licensor or use of the TouchShare Software in combination with other software or any
other products or devices if such claim would have been avoided but for such modification or combination.
7. CONFIDENTIAL INFORMATION
7.1 Obligations. Licensee acknowledges that the TouchShare Software contains valuable trade secrets of Licensor,
and agrees that it shall not under any circumstances disassemble, decompile, or reverse engineer the TouchShare
TouchShare Software License Agreement 3
Software. Licensee agrees that it will not disclose or, except as expressly permitted in this Agreement, use any
TouchShare Software, Documentation, or other technical information disclosed to it by Licensor ("Confidential
Information") and that it will take all reasonable measures to maintain the confidentiality of all Confidential Information
in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its
own information of equal importance.
7.2 Exceptions. Confidential Information will not include information that (a) is in or enters the public domain
without breach of this Agreement, (b) Licensee receives from a third party without restriction on disclosure and without
breach of a nondisclosure obligation or (c) Licensee develops independently, which it can prove with written evidence.
7.3 Terms of Agreement. Licensee acknowledges that all of the terms of this Agreement are considered Confidential
Information.
8. LIMITED WARRANTY; EXCLUSIVE REMEDY
8.1 Limited Warranty. Licensor warrants that, during the Warranty Period, the performance of the TouchShare
Software will not deviate materially from the Specifications.
8.2 Exclusions. The foregoing warranty does not apply to any software other than the TouchShare Software. In
addition, such warranty does not apply to any material deviation which results from (a) modification of the TouchShare
Software by anyone other than Licensor, (b) use of the TouchShare Software for any purpose other than intended, (c) use
of any other software, (d) failure by Licensee to install any Standard Enhancement, in accordance with Section 9.3, or any
operating system release, (e) any willful or negligent action or omission of Licensee, and (f) any misuse or incorrect use
of the TouchShare Software.
8.3 Exclusive Remedy. In the event of any failure by the TouchShare Software to perform, in any material respect, in
accordance with the warranty set forth herein, the only liability of Licensor to Licensee, and Licensee's sole and exclusive
remedy, shall be use by Licensor of commercially reasonable efforts to correct or avoid the deviation.
8.4 Disclaimers. THE LIMITED WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND IN LIEU OF, AND
LICENSEE HEREBY WAIVES, ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS OF THE TOUCHSHARE SOFTWARE FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALENJG OR COURSE OF
PERFORMANCE. LICENSEE EXPRESSLY ACKNOWLEDGES THAT BECAUSE OF THE COMPLEX NATURE
OF COMPUTER SOFTWARE, LICENSOR CANNOT AND DOES NOT WARRANT THAT THE OPERATION OF
THE TOUCHSHARE SOFTWARE WILL BE WITHOUT INTERRUPTION OR ERROR-FREE.
9. SOFTWARE SUPPORT
Licensor shall fumish the following services throughout the Warranty Period; provided, however, that Licensor shall not
be obligated to fumish any such services in circumstances described in Section 9.4:
9.1 Error Correction. In the event that the operation of the TouchShare Software deviates materially from the
Specifications and such deviation can be replicated by Licensee using the unmodified TouchShare Software maintained
by Licensee in accordance with Section 3.4, of the Software Maintenance Agreement, Licensee shall give Licensor
written notification of the deviation in sufficient detail to permit replication and analysis, and shall provide Licensor with
all printouts and other information reasonably requested. Upon receipt of notice from Licensee of any deviation. Licensor
shall use commercially reasonable efforts, first via telephone access and subsequently (as necessary) by onsite visit, to
diagnose the cause of the deviation. Upon completion of the diagnosis. Licensor shall advise Licensee of the source of the
deviation. Unless the deviation falls within the exclusions set forth in Section 9.4, Licensor shall use commercially
reasonable efforts, without charge (other than for travel costs incurred in connection with necessary onsite visits), to
correct or avoid the deviation. If such deviation falls within Section 9.4, Licensor shall fumish Licensee with a written
estimate of the cost of correction, and if Licensee authorizes correction. Licensor shall use commercially reasonable
TouchShare Software License Agreement 4
efforts to correct or avoid the deviation. With respect to each deviation which Licensor is not obligated to correct,
Licensee shall be invoiced for the cost of the diagnosis in accordance with the applicable Licensor Service Rate.
9.2 Telephone Support. Telephone support will be available to the persons designated in writing by Licensee and
approved by Licensor. Such services shall be provided by Licensor during the Warranty Period during the business hours
of 9 AM - 5 PM Pacific time. In connection with any request by Licensee for telephone support. Licensee shall provide
Licensor with all printouts and other information reasonably requested.
9.3 Standard Enhancements. Licensor shall make available all Standard Enhancements to Licensee at no additional
charge, by download or other means determined by Licensor. Licensee shall be responsible for installation of each
Standard Enhancement in accordance with Licensor's installation instructions within six (6) months after the date of its
release and for merging each Standard Enhancement with any modification of the TouchShare Software other than an
Optional Enhancement and with any other software. Any assistance (other than telephone support) requested by Licensee
shall be provided to Licensee in accordance with the applicable Licensor Service Rate.
9.4 Exclusions. Licensor shall not be required to provide any support services described in this Section which are
necessitated by, with respect to, or otherwise in connection with: (a) modification of the TouchShare Software by anyone
other than Licensor (b) use of the TouchShare Software for any purpose other than intended; (c) use of any other software;
(d) failure by Licensee to install any Standard Enhancement, in accordance with Section 9.3, or any operafing system
release; (e) any willful or negligent action or omission of Licensee; (f) any misuse or incorrect use of the TouchShare
Software; or (g) failure to register the software to enable email notifications and online support.
10. POST WARRANTY SUPPORT
Licensee shall be given the opportunity to purchase Software maintenance as described in the applicable sales/purchase
order accompanying this Agreement to extend the software support described in Section 9 beyond the Warranty Period for
the TouchShare Software.
11. DISPUTES, ARBITRATION
11.1 Disputes Generally. The parties hereby undertake to use good faith efforts to settle all disputes arising under this
Agreement. Failing settlement, all disputes, except those involving a Licensee that is a U.S. Govemment entity or other
govemmental unit precluded by applicable law from entering into binding arbitration, including without limitation claims
of breach of contract, fraud in the inducement and negligence shall be referred to binding arbitration in Glendale,
Califomia or such other location as the parties may agree, in accordance with the Commercial Rules of Arbitration of the
American Arbitration Association. Notwithstanding the foregoing, any disputes with respect to ownership of the
TouchShare Software or any modification thereof shall not be subject to this arbitration provision. Any arbitration
referred to herein when the Licensee is a U.S. Govemment agency or organization shall be considered optional rather than
mandatory, and if used will be non-binding rather than binding.
11.2 Selection of Arbitrator(s). If, within seven (7) days after receipt by one party of the other party's notice of
intention to arbitrate, the parties are unable to agree on a single arbitrator, each party shall have seven (7) days to appoint
its own arbitrator, and the two arbitrators thus chosen shall together, within seven (7) days of their appointment, appoint a
third arbitrator. If either party fails to appoint its own arbitrator within the specified period, the arbitrator appointed by the
other party shall be the sole arbitrator. If both parties fail to appoint arbitrators within the specified period, or if the
arbitrators appointed by the parties fail to appoint a third arbitrator within the specified period, the American Arbitration
Association shall make the appointment. The parties shall use their best efforts to appoint arbitrators who are
knowledgeable in computer technology.
11.3 Decision of Arbitrators. The decision of the arbitrator(s) shall be final and may be enforced in any court of
competent jurisdiction.
TouchShare Software License Agreement
11.4 Expense of Arbitration. The prevailing party in any proceeding shall be reimbursed by the other party for all
expenses incurred in connection with arbitration; provided, however, that except in the case of disputes conceming fees
due under Section 4, each party shall be responsible for its own attomeys' fees.
11.5 Govemment Licensees. If Licensee is a U.S. govemment agency, then the Contract Disputes Act, 41 USC § 601
et seq., shall apply in lieu of subsections 11.1 through 11.4. In the event of a dispute, the parties agree to give due
consideration to the use of altemative dispute resolution (ADR).
12. TERM AND TERMINATION
12.1 Term. The term of this Agreement shall commence upon the Effective Date hereof and shall remain in effect
perpetually, unless terminated in accordance with Section 12.2.
12.2 Termination. This Agreement and the licensed rights granted hereunder may be terminated by either party if the
other party has not performed any material obligation or has otherwise breached any material term of this Agreement (a)
immediately upon receipt of written notice thereof if the breach or nonperformance is incapable of cure, or (b) upon the
expiration of thirty (30) days (or any longer cure period authorized by the non-breaching party with respect to any
individual breach) after receipt of written notice thereof if the breach or nonperformance is capable of cure and has not
then been cured.
12.3 Subsequent Obligations. Upon termination of this Agreement, in accord with Section 12.2, Licensee shall
promptly return to Licensor the Documentation for the TouchShare Software, including all copies prepared by or for
Licensee. Within sixty (60) days after the effective date of termination. Licensee shall certify in writing that all such
materials have been retumed.
13. INDEMNIFICATION
13.1 By Licensor. Licensor shall indemnify, defend and hold Licensee harmless from and against any and all liability,
damages, loss or expense (including reasonable fees of attomeys and other professionals) arising from any claim, demand,
action or proceeding initiated by any third party based upon infringement of a copyright or trade secret as a result of
Licensee's use of the TouchShare Software if (a) Licensee has installed any Standard Enhancement supplied by Licensor
which results in total or partial avoidance of the alleged infringement; (b) the claim does not arise out of modification of
the TouchShare Software by anyone other than Licensor or use of the TouchShare Software with any other software and
(c) Licensee has complied with all of the terms and conditions of this Agreement.
13.2 By Licensee. To the extent permitted by applicable law. Licensee shall indemnify and hold Licensor harmless
from and against any and all liability, damages, loss or expense (including reasonable fees of attomeys and other
professionals) arising from any claim, demand, action or proceeding initiated by any customer or client of Licensee based
upon any loss resulting from or occasioned by the possession, use or operation of the TouchShare Software by Licensee.
13.3 Conditions to Obligation. Each party shall promptly notify the other in the event of the threat or initiation of any
claim, demand, action or proceeding to which the indemnification obligation set forth herein may apply. The indemnified
party shall assist the indemnifying party, at the indemnifying party's request and expense, in the defense or settlement of
the matter; provided, however, that no such matter shall be settled without the indemnified party's consent to the terms of
settlement, which consent shall not be unreasonably withheld.
14. LIMITATION OF LIABILITY
14.1 Limitations and Exclusions. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOSS OF PROFITS
OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER
PARTY AND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. LICENSOR SHALL NOT BE
LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN THE DELIVERY, INSTALLATION OR FURNISHING OF
ANY DELIVERABLE HEREUNDER.
TouchShare Software License Agreement 6
14.2 Maximum Aggregate Liability. THE LIABILITY OF LICENSOR UNDER THIS AGREEMENT, WHETHER
ARISING OUT OF BREACH OF CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY)
OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT LIABILITY), SHALL IN NO
EVENT EXCEED (a) WITH RESPECT TO OBLIGATIONS OF LICENSOR UNDER THIS AGREEMENT, THE
TOTAL LICENSE FEE ACTUALLY PAID TO LICENSOR BY LICENSEE IN ACCORDANCE WITH SECTION 4.1
HEREOF AND (b) WITH RESPECT TO ANY OPTIONAL ENHANCEMENT DEVELOPED, THE AMOUNT OF
THE CHARGE FOR SUCH OPTIONAL ENHANCEMENT ACTUALLY PAID TO LICENSOR BY LICENSEE.
14.3 Acknowledgement. Licensee acknowledges that the limitations of liability and disclaimers of warranty set forth
in this Agreement will apply regardless of whether Licensor has tendered delivery of the TouchShare Software, any
Optional Enhancement or any other optional services. Licensee acknowledges that Licensor has set its license fees and
other prices in reliance on the disclaimers of warranty and limitations and exclusions of liability set forth in this
Agreement and that the same form an essential basis of the bargain between the parties.
15. NON EXPORT
Licensor makes no representations of any kind whatsoever to Licensee that any of the TouchShare Software provided
hereunder either is or is not subject to licensing requirements or restrictions on use or disclosure by the United States
Govemment or by any state or foreign govemment(s), and Licensee expressly agrees that it will independently undertake,
at its expense, to determine and obtain all licenses, permissions, and releases, required by the United States Govemment
or any state or foreign govemment(s). Licensee agrees that it will not export directly or indirectly, the TouchShare
Software or any technical data pertaining to the TouchShare Software to any country for which the United States
Government or any agency thereof at the time of export requires an export license or other Govemment approval, (or
make it available to a national of such a foreign country), without first acquiring such approval, including but not limited
to, the Intemational Traffic in Arms Regulations (ITAR), administered by the Department of State, or the Export
Administration Regulations (EAR), administered by the Department of Commerce.
16. GENERAL TERMS
16.1 Assignment. Neither this Agreement nor any rights granted hereby may be assigned by Licensee without the
prior written consent of Licensor. Any attempt by Licensee to assign any rights, duties or obligations without such
consent shall be void and without force or effect.
16.2 Modification. This Agreement can only be modified by a written agreement signed by persons authorized to sign
agreements on behalf of Licensee and of Licensor, and variance from the terms and conditions of this Agreement in any
written notification given by either party shall have no force or effect.
16.3 Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable for any
reason, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired
thereby.
16.4 Relationship of Parties. Licensor and Licensee each will be and shall act as independent contractors, and no party
is authorized to act as an agent or partner of, or joint venture with, any other party for any purpose. No party by virtue of
this Agreement shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of
the other party.
16.5 Notices. All notices shall be in writing and shall be deemed to be delivered when deposited in the United States
registered mails, postage prepaid, retum receipt requested. All notices shall be directed to Licensee or Licensor at the
respective addresses first set forth above or to such other address as either party may, from time to time, designate by
notice to the other party.
TouchShare Software License Agreement
16.6 Legal Actions. No action, regardless of form, arising out of this Agreement may be brought by either party more
than two (2) years after the cause of action has arisen, or, in the case of nonpayment, more than two (2) years after the
date of the last payment.
16.7 Injunctive Relief. In the event that (a) Licensee attempts or threatens to use, copy, license, or convey the items
supplied by Licensor hereunder in a manner contrary to the terms of this Agreement, or (b) either party attempts or
threatens to violate its obligations under Section 7, the aggrieved party shall have, in addition to any other remedies
available to it, the right to seek injunctive relief Each party hereby acknowledges that other remedies at law may be
inadequate in the circumstances set forth herein.
16.8 Goveming Law. Except in the case of Licensees who are U.S. govemment agencies, this Agreement, and any
and all tort claims that may arise in connection with the TouchShare Software and any related services, will be governed
by the laws of Califomia, without reference to its conflicts of laws principles. If Licensee is a U.S. govemment agency.
Federal law applicable to govemment contracts and to tort claims against the Federal govemment shall apply. In that
event, as to issues not addressed by Federal law, and to the extent that a court or Contract Appeals Board makes reference
to state law or precedent, the parties intend that this Agreement be interpreted and applied with reference to the law and
precedents of Califomia.
16.9 Force Majeure. Neither party shall be liable for any damages or penalty for any delay in performance of, or
failure to perform, any obligation hereunder or for failure to give the other party prior notice thereof when such delay or
failure is due to the elements, acts of God, delays in transportation, delays in delivery by vendors or other causes beyond
that party's reasonable control.
16.10 Non-Waivers. No express or implied waiver by either party of any event of default hereunder shall in any way
be, or be construed as, a waiver of any future or subsequent event of default.
16.11 Survival. The respective rights and obligations of the parties under Sections 5, 6, 7, 15 and 16 shall survive the
termination of this Agreement.
16.12 Entire Agreement. The parties acknowledge that this Agreement, together with Exhibits A and B hereto, set forth
the complete, exclusive and integrated understanding of the parties which supersedes all proposals or prior agreements,
oral or written, and all other prior communications between the parties relating to the subject matter of this Agreement.
16.13 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same document.
16.14 Federal Customers. If Licensor is an agency of the U.S. Govemment, the parties agree that the TouchShare
Software is commercial computer software, which is licensed pursuant to this Agreement in accordance with Federal
Acquisition Regulation (FAR) 12.212. If this Agreement is incorporated in a Federal contract containing the clause FAR
52.227-19, that clause shall be deemed incorporated herein.
16.15 Execution. The parties may indicate their assent to this Agreement either by executing it in the spaces provided
below, or by incorporating it by reference or by attachment in a separate duly-executed agreement.
LICENjSOR, or Value Adc^d Reseller, on behalf of LICENSOR
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TouchShare Software License Agreement
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TouchShare Software License Agreement