JD BIGGS & ASSOCIATES, INC.
LICENSE AND USE AGREEMENT
This
License and Use Agreement (the “Agreement”), by and between J.D. Biggs &
Associates, Inc., Licensor (hereinafter referred to as “JD Biggs”) and you,
the licensee, (hereinafter referred to as “Licensee”)
WITNESSETH
1.0 Subject to all of the terms and limitations set forth herein, JD Biggs hereby grants Licensee the non-exclusive right to use the materials and/or related programs (collectively referred to herein as the “Security Artifacts”), created, owned and copyrighted by JD Biggs, for the duration set forth in the Security Artifact’s description, which may consist of either a single use or multiple use period as set forth in the Security Artifact’s description. A list of the Security Artifacts for which non-exclusive use has been granted to the Licensee is set forth on your receipt(s). This right of use and license shall be non-transferable and non-sublicenseable to any other person, firm, corporation or entity without the express written approval of JD Biggs.
2.0 During the duration of this Agreement, ownership of the Security Artifacts and the information contained therein, including all artwork, graphics, design or presentation shall remain the exclusive property of JD Biggs. In the event of any sale of the Security Artifacts by JD Biggs to a third party, this Agreement shall remain in full force and effect, and JD Biggs agrees to execute such other and further agreements and assignments of its rights and responsibilities contained herein to effectuate the same.
3.0 During the tenure of this Agreement, JD Biggs shall retain the right to continue any and all development efforts on the Security Artifacts. Any revised Security Artifacts, to the extent the respective Security Artifacts are identified on your receipt as the subject of this Agreement, developed by JD Biggs during the tenure of this Agreement, shall be a part of the Agreement and may be utilized by Licensee as part of this Agreement. Notwithstanding the foregoing, any transmission or use of such revised Security Artifacts shall not serve to increase or extend the duration of this Agreement.
4.0 During the license period as set forth in Attachment A, Licensee shall be required to display and maintain JD Biggs corporate logo and trademark designation on all Security Artifacts. Licensee shall have the right to display their own logo and/or trademarks on the Security Artifacts during the term of this Agreement; however, this designation shall be in addition to, and shall not obstruct in any manner, the display of JD Biggs’ logo and trademark.
5.0 To the extent the Licensee requires any specific adaptations on the Security Artifacts to allow the Security Artifacts to be utilized by the Licensee, fees for such adaptations shall be expressed in writing on request of the Licensee.
6.0 The fee for the usage of the Security Artifacts is defined for each artifact. All payments to JD Biggs from Licensee shall be made prior to using or obtaining the Security Artifacts. Failure of the Licensee to make payment when due shall constitute a breach of this Agreement, which shall entitle JD Biggs to immediately cancel this Agreement. Any payments not made when due shall bear interest at the rate of twenty-four percent (24%) per annum.
7.0 JD Biggs represents, warrants and agrees that (i) it has all
rights and authorities to execute and deliver this Agreement and to perform its
obligations hereunder, and to grant Licensee the foregoing rights to use the
Security Artifacts offered and nothing in this Agreement or the performance
thereof shall place JD Biggs in breach any other agreement, contract or
obligation; (ii) Licensee understands and acknowledges that JD Biggs shall have
no obligation to file for any intellectual property registrations or copyrights
outside of the United States; (iii) to the best of JD Biggs knowledge,
information and belief, there are no pending lawsuits or other litigation,
claims or arbitration pending with respect to the Security Artifacts or any
parts thereof, which would materially effect JD Biggs’ ability to perform its
obligations under this Agreement, and JD Biggs shall promptly notify the
Licensee in writing in the event any such claim or suit is asserted, filed or
instituted; and (iv) to the best of JD Biggs’ knowledge, information and belief,
the Security Artifacts and Licensee’s use of the same under the terms of this
Agreement shall not infringe on any intellectual property or other rights of
any third parties. OTHER THAN THE
FOREGOING REPRESENTATION AND WARRANTY, JD BIGGS MAKES NO REPRESENTATIONS OR
WARRANTIES WHATSOEVER TO ANY PERSON OR ENTITY WITH RESPECT TO THE SECURITY
ARTIFACTS AND THE INFORMATION CONTAINED THEREIN, OR ANY OTHER SUBJECT MATTER OF
THIS AGREEMENT. WITH THE EXCEPTION OF
THE REPRESENTATIONS AND WARRANTIES SET
8.0 In the event of any lawsuits or similar legal or dispute resolution proceedings filed by JD Biggs against any third parties as a result of any claims by JD Biggs of infringement of intellectual property rights, all amounts recovered by JD Biggs by judgment or settlement of any such claims shall be the sole property of JD Biggs.
9.0 Licensee represents and warrants to JD Biggs that: (i) it has all necessary rights and authority to execute this Agreement and to perform its obligations hereunder, and that nothing in this Agreement or the performance thereof that shall place Licensee in breach of any other agreement, contract or obligation; (ii) that Licensee possess all technical and other capabilities required to fulfill its obligations hereunder; and (iii) that Licensee is not a party to or involved in any claim, arbitration or litigation, which would in any manner impact or infringe upon this Agreement and the performance thereof.
10.0 Licensee recognizes the importance of maintaining the confidentiality of the intellectual property of JD Biggs, including but not limited to the Security Artifacts. Except for the uses of the Security Artifacts set forth in their descriptions, and as requested by JD Biggs, Licensee agrees to maintain the confidentiality of any and all proprietary information transmitted to Licensee by JD Biggs in conjunction with this Agreement or otherwise. Licensee will immediately notify JD Biggs in writing of any unauthorized disclosure or release of confidential or proprietary information of JD Biggs to third parties by agents or employees of Licensee. In the event of any unauthorized release or disclosure of any confidential or proprietary information, JD Biggs shall be entitled to seek all legal and equitable remedies available, including but not limited to lost profits and attorneys’ fees, incurred by JD Biggs as a direct result thereof. This Agreement to maintain the confidentiality of all intellectual property of JD Biggs shall survive the termination or expiration of this Agreement.
11.0 In the event of any dispute or breach of any of the provisions of this Agreement, the non-breaching party shall provide the party in breach with written notice of the breach and a reasonable opportunity to cure said breach, not to exceed thirty (30) days. In the event the breaching party fails to cure any breach within said time period or the parties fail to arrive at any mutual agreement resolving said breach or dispute, the non-breaching party may institute dispute resolution proceedings, including arbitration or litigation, as set forth in the following paragraph.
12.0 Any dispute between JD Biggs and Licensee arising out of, or
related to, this Agreement, which cannot be settled by mutual agreement as set
forth above, or the breach thereof, shall be settled by arbitration if JD
Biggs, in its sole discretion, elects to arbitrate the dispute in lieu of
litigation, which arbitration shall be held at the offices of JD Biggs or
another mutually agreeable venue in Prince George’s County, Maryland. Any arbitration shall be conducted in
accordance with the Arbitration Rules of the American Arbitration Association
currently in effect unless the parties mutually agree otherwise. In the event JD Biggs elects to waive arbitration,
any and all litigation shall be commenced in Prince George’s County,
Maryland. Licensee specifically consents
to venue and jurisdiction in
13.0 This Agreement may be terminated for cause by any party by written notice immediately upon the occurrence of any of the following events:
13.1 mutual, written agreement of the parties to terminate this Agreement;
13.2 if a party to this Agreement ceases to do business or otherwise terminates its business operations for a period of sixty (60) days;
13.3 any breach of any provision of this Agreement, where said breach is not cured within thirty (30) days after written notice of the breach is provided to the breaching party by the non-breaching party; or
13.4 any party to this Agreement (i) becoming or being declared insolvent or bankrupt; (ii) becoming the subject of any proceedings related to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it; (iii) making an assignment for all or substantially all of its creditors; (iv) entering into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations and notice from the other party of its intent to terminate this Agreement as of the date set forth in such notice.
14.0 The parties to this Agreement are independent contractors and are not partners, joint ventures or otherwise affiliated in any way and neither party has the right or ability to bind the other party in any manner or to any agreement.
15.0 Except as otherwise provided herein, the rights and obligations of the parties under this Agreement are personal and may not be assigned, directly or indirectly, voluntarily, or by operation of law, without the prior written consent of the non-assigning party, and such consent shall not be unreasonably withheld. It shall be deemed reasonable for either party to withhold consent to any assignment by the other party to a direct competitor of the party whose consent is being requested. Notwithstanding the foregoing, any party may assign this Agreement or delegate any of its rights and obligations to an affiliate. The assigning party must advise the non-assigning party in writing not less than thirty (30) days prior to the effective date of any such proposed assignment. Notwithstanding the foregoing, no consent by a party to an assignment shall have the effect of releasing the assigning party for any obligation or responsibility under this Agreement.
16.0 To the fullest extent permitted by law, Licensee shall indemnify, defend and hold harmless JD Biggs, its consultants, agents, officers and employees of any of them from and against any and all claims, damages, losses and expenses, including but not limited to attorney’s fees, arising out of or resulting from performance of the Agreement and use of the Security Artifacts by Licensee, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. JD Biggs shall have the sole right to select any counsel employed by Licensee in defense of JD Biggs in any such action. Such obligation shall not be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this paragraph.
17.0 Upon completion of the terms and obligations of this Agreement, and expiration of the license period as set forth in the Security Artifact’s description, Licensee agrees to return all Security Artifacts and any other confidential or proprietary information of JD Biggs to JD Biggs within three (3) business days of the expiration of the license term.
18.0 This Agreement shall be governed and construed according to the
laws of the State of
19.0 Except as otherwise expressly provided herein, any provision of this Agreement may be amended or the observance of any provision of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) with the written consent of all parties herein.
20.0 The partial or complete invalidity of any one or more provisions of this Agreement shall not affect the validity or continuing force and effect of any other provision, and said invalid provision shall be stricken from this Agreement either in whole or in part to the minimum extent necessary to allow the remainder of the Agreement to remain in full force and effect.
21.0 The failure of either party hereto to insist, in any one or more instances, upon the performance of any of the terms, covenants or conditions of this Agreement, or to exercise any right herein, shall not be construed as a waiver or relinquishment of such term, covenant, condition or right as respects to further performance of this Agreement.
22.0 Should JD Biggs employ an attorney to institute suit or demand arbitration to enforce any of the provisions hereof or to protect its interests in any manner arising under this Agreement, JD Biggs shall be entitled to recover from Licensee reasonable attorneys' fees, costs, charges, expert witness fees, and expenses expended or incurred therein.
23.0 Notices under this Agreement shall be effective if personally delivered to the party to who addressed or sent by overnight delivery, facsimile transmission, certified mail-return receipt requested or First class mail, postage pre-paid. Notices sent by First class mail shall be deemed received within five (5) calendar days of deposit in a mail or other post box.
23.1 Notices to JD Biggs shall be sent to:
JD Biggs & Associates Inc.
Attention: James D. Biggs
12602 Bear Creek Terrace
_________________________________________________
23.2 Notices to Licensee shall be sent to:
The billing name and address on file for the Licensee.
_____________________________________________
24.0 In the event Licensee is a corporation, limited liability company or limited partnership, the individual executing this Agreement on behalf of the corporation, limited liability company or limited partnership, by agreeing hereto, whether as a corporate officer of Licensee or otherwise, does hereby personally guarantee performance by Licensee of all of the obligations and responsibilities set forth herein.
25.0 Neither party shall be liable to the other for any loss or damage or be deemed in breach of this Agreement to the extent that performance of such party’s obligations or attempts to cure any breach under this Agreement are delayed or prevented as a result of any event or circumstance beyond said party’s reasonable control, including without limitation, war, invasion, act of a foreign enemy, hostilities, civil war or rebellion (whether a declared war or not), strike, lock-out or other industrial dispute, or act of God. If, however, a party’s non-performance or delay in curing any breach continues for a period of three (3) months, then the other party may terminate this Agreement for convenience upon thirty (30) days written notice to the non-performing party, provided however that if performance resumes within said thirty (30) day notice period then this Agreement shall continue in full force and effect as if no notice had been given.
26.0 EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, WHETHER FOR BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY), AND IRRESPECTIVE OF WHETHER THE PARTIES HAVE ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. ANY AND ALL REMEDIES OF EITHER PARTY SHALL BE LIMITED TO ACTUAL DIRECT MONEY DAMAGES AND IN NO EVENT SHALL LICENSEE HAVE THE RIGHT TO (A) ANY RIGHTS IN OR TO THE SECURITY ARTIFACTS OR ANY DERIVATIONS THEREOF; OR (B) ENJOIN OR OTHERWISE INTERFERE WITH JD BIGGS DEVELOPMENT, LICENSING, PUBLISHING, MARKETING AND DISTRIBUTION OF THE SECURITY ARTIFACTS OR ANY DERIVATIONS THEREOF, UPON THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
27.0 The rights and remedies of JD Biggs set forth in this Agreement are not exclusive and are in addition to and not in limitation of any other rights and remedies available to JD Biggs at law or in equity.
28.0 This Agreement is solely for the benefit of the parties hereto and represents the entire and integrated agreement between the parties hereto and, unless specifically referenced herein, supersedes all prior negotiations, representations, proposals or agreements, either written or oral.
29.0 Any inconstancies, ambiguities or conflicts in this Agreement shall not be strictly construed against the party causing this Agreement to be drafted, but shall be resolved according to its fair meaning and interpretation.
30.0 This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument and Agreement.
31.0 All references to payments and dollars as set forth herein or
elsewhere in reference to the Security Artifacts shall refer to payments in
By continuing with the purchase the Licensee expressly accept all items in this Agreement.