COMPATIBLE WITH LABVIEW" LOGO LICENSE AGREEMENT
This "COMPATIBLE WITH LABVIEW" Logo License Agreement (this “Agreement”) is entered into effective as of the last day of execution set forth below by National Instruments Corporation, a Delaware corporation (“LICENSOR”) having an address of 11500 North Mopac Expressway, Austin, Texas 78759, and the “LICENSEE”.
1. BACKGROUND AND DEFINITIONS
1.1. LICENSOR desires to permit certain software developers which meet, and which market and supply certain software programs which meet, the REQUIREMENTS (as defined below) and which are of QUALITY (as defined below), to use the applicable “Compatible with LabVIEW” logo identified on Exhibit A hereto (the “LOGO”) only in connection with such software programs and only for the purpose of designating such software programs as being compatible with LICENSOR’s software program marketed under the “LABVIEW” trademark.
1.2. LICENSEE recognizes the goodwill appurtenant to use and/or ownership of the LOGO and desires to obtain a nonexclusive, nontransferable, royalty free license to use the LOGO in connection with the QUALIFYING SOFTWARE PROGRAMS. LICENSOR is willing to grant, and LICENSEE is willing to accept, such a license under the terms and conditions of this Agreement.
1.3. As used in this Agreement,
(a) “REQUIREMENTS” means the requirements and guidelines set out or referred to in Exhibit B hereto, as may be changed by LICENSOR from time to time at LICENSOR’s sole discretion and made available to LICENSEE (the “REQUIREMENTS”).
(b) “QUALITY” means a level of quality which is acceptable to LICENSOR, as determined in LICENSOR’s sole discretion (“QUALITY”). Unless otherwise notified by LICENSOR, such acceptable level of QUALITY is that which is generally acceptable in the industry.
(c) “QUALIFYING SOFTWARE PROGRAMS” means those software programs marketed and supplied by LICENSEE which are (i) specifically identified on Exhibit C hereto, (ii) meet the REQUIREMENTS, and (iii) are of QUALITY.
All other terms appearing in all capital letters in this Agreement shall have the meaning ascribed to them in this Agreement.
2. LICENSE GRANT AND RELATED MATTERS; NO WARRANTY
2.1. Subject to, and conditioned upon LICENSEE’s compliance with, the terms and conditions of this Agreement, LICENSOR hereby grants to LICENSEE, and LICENSEE hereby accepts, a nonexclusive, nontransferable, royalty-free, worldwide (except to the extent limited by Section 2.4 hereinbelow), right and license to use the LOGO on or in connection with the QUALIFYING SOFTWARE PROGRAMS of QUALITY.
2.2. The rights and licenses granted through this Agreement are personal to LICENSEE, and LICENSEE shall not have the right to assign, sublicense or otherwise transfer any of its rights or licenses under this Agreement without the express written consent of LICENSOR. Unless LICENSEE is a publicly traded corporation, any change in control or ownership of LICENSEE shall be deemed to be an assignment or transfer for purposes of the previous sentence.
2.3. LICENSEE agrees that it will in no event use the LOGO other than as expressly permitted by the license granted in Section 2.1 of this Agreement. LICENSEE agrees to comply with the Logo Usage Requirements identified in Exhibit A, as may be changed by LICENSOR from time to time at LICENSOR’s sole discretion and made available to LICENSEE, in each instance of LICENSEE’s use of the LOGO, including without limitation all applications and displays of the LOGO to, on, or in copies of QUALIFYING SOFTWARE PROGRAMS and related media, user documentation, marketing materials, and web site displays.
2.4. LICENSEE shall not use the LOGO in any country to which the QUALIFIED SOFTWARE PROGRAM is prohibited from being exported, or to which LICENSOR’S LabVIEW software program is prohibited from being exported, or any other country identified from time to time by LICENSOR to LICENSEE in LICENSOR’s reasonable discretion.
2.5. No license is granted by LICENSOR under any patent, copyright, trade secret, or other intellectual or industrial property right except the limited license under LICENSOR’s trademark rights which is expressly granted in Section 2.1 of this Agreement. Except as expressly granted in Section 2.1, no license is granted by LICENSOR, expressly, or by implication, estoppel, or otherwise. LICENSOR undertakes no obligation to provide any technical assistance or materials to LICENSEE to assist LICENSEE in meeting any REQUIREMENTS or otherwise. LICENSOR undertakes no obligation to register or apply to register as a trademark the LOGO in any jurisdiction, or to maintain any registrations. This Agreement shall not in any way preclude LICENSOR from using the LOGO, or any portion or element thereof, or any confusingly similar symbol or mark, as a mark, domain name, or otherwise, with regard to LICENSOR’s own products or services, or from granting licenses to others to use the LOGO or any portion or element. In the event of a claim of infringement or violation of any intellectual or industrial property right involving the LOGO, LICENSEE shall modify or cease using the LOGO as may be instructed by LICENSOR in writing.
2.6. THE LOGO IS LICENSED, AND ANY AND ALL MATERIALS RELATED TO THE LOGO AND ANY AND ALL TECHNICAL ASSISTANCE AND MATERIALS (IF PROVIDED BY LICENSOR AT ALL) ARE PROVIDED, “AS IS” WITHOUT WARRANTY OF ANY KIND, AND NO WARRANTIES (EITHER EXPRESSED OR IMPLIED) ARE MADE WITH RESPECT TO THE LOGO OR SUCH ASSISTANCE OR MATERIALS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. Without limiting the generality of the foregoing, LICENSOR makes no representation or warranties to LICENSEE that the use of the LOGO or any other marks owned by LICENSOR or any of its subsidiaries or affiliates in any geographic area, does not infringe, dilute, or unfairly compete with the rights of another owning prior rights in a confusingly similar, famous or distinctive mark.
2.7. In no event may LICENSEE use the LOGO on or in connection with any software program, or any other product or service, other than the QUALIFYING SOFTWARE PROGRAM. If LICENSEE previously has been permitted by NI to use a “Compatible with LabVIEW” logo other than the LOGO, or a similar logo, on or in connection with a QUALIFYING SOFTWARE PROGRAM, LICENSEE may not continue to use any such other logo on or in connection with the QUALIFYING SOFTWARE PROGRAM.
3. PROMOTIONAL PROGRAM APPLICATION INFORMATION; OWNERSHIP OF QUALIFYING SOFTWARE PROGRAMS; HAZARDOUS USES; QUALITY CONTROL; COMPLIANCE WITH LAW
3.1. LICENSEE hereby confirms that all information, statements, and representations made by LICENSEE on or in connection with LICENSEE’s application for the Compatible with LabVIEW Program are accurate and complete, and agrees to promptly inform LICENSOR of any material changes in such information. LICENSEE warrants, represents, and agrees that it is, and at all times during the term of this Agreement shall remain, the sole owner of the QUALIFYING SOFTWARE PROGRAMS offered by LICENSEE on or in connection with which the LOGO is displayed. LICENSEE further warrants and represents that such QUALIFYING SOFTWARE PROGRAMS are not for use in or in connection with any applications or systems that are critical, high risk, or require stable operation and could result in significant risk of loss or actual loss as a result of application failure or shutdown or other errors or complications arising from technical or human error, including without limitation nuclear facilities, aircraft navigation or communication systems, air traffic control, surgical implants, life support systems, or weapon systems in which the failure of (or inability to access) the program or software could lead to death, personal injury or severe physical or environmental damage; and LICENSEE agrees that during the term of this Agreement such QUALIFYING SOFTWARE PROGRAMS shall not be adapted or marketed by LICENSEE, directly or indirectly, for any such use.
3.2. LICENSEE warrants, represents and agrees that the QUALIFYING SOFTWARE PROGRAMS offered by LICENSEE under the LOGO meet the REQUIREMENTS, and that at all times during the term of this Agreement they shall continue to meet the REQUIREMENTS and shall be of QUALITY. LICENSOR shall, from time to time, set standards for and shall have the right to control the quality and REQUIREMENTS conformance of the QUALIFYING SOFTWARE PROGRAMS offered by LICENSEE under the LOGO. LICENSEE agrees to and shall have the sole responsibility to comply with all applicable laws and regulations, including without limitation those relating to export control, relating to the offering or supplying of the QUALIFYING SOFTWARE PROGRAMS.
3.3. With a view to ensuring that the QUALIFYING SOFTWARE PROGRAMS continuously meet the REQUIREMENTS, and the maintenance of QUALITY in general with respect to the QUALIFYING SOFTWARE PROGRAMS, LICENSEE shall, free of charge, complete such questionnaires and provide such information, documentation, and certificates as LICENSOR may request from time to time, and shall submit to LICENSOR, free of charge, for its inspection, representative specimens or advertisements for the QUALIFYING SOFTWARE PROGRAMS in connection with which the LOGO is used, as may be requested by LICENSOR from time to time.
4. TERM & TERMINATION
4.1. The term of this Agreement and the license and rights granted hereunder shall commence on the Effective Date of this Agreement and shall continue for a period of three (3) years so long as LICENSEE does not discontinue use of the LOGO in connection with the QUALIFYING SOFTWARE PROGRAMS, subject to earlier termination as provided in this Agreement.
4.2. LICENSEE may terminate this Agreement without cause and without liability by reason of such termination by delivering to LICENSOR a notice of intent to terminate, in which case this Agreement shall automatically terminate five (5) days after receipt of such notice by LICENSOR.
4.3. If LICENSOR determines that (a) LICENSEE has failed to comply with any provision of this Agreement, or (b) LICENSEE has failed to comply with any applicable law or regulation, LICENSOR may immediately terminate this Agreement, without liability on the part of LICENSOR by reason of such termination, by providing notice of such termination to LICENSEE; provided, however, that if such notice of termination is based solely on a failure to comply with Section 2.3 with respect to a LICENSEE software program specifically identified on Exhibit C hereto, LICENSEE shall have until thirty (30) days after the date of such notice to correct the failure to LICENSOR’s reasonable satisfaction, and in the event of such timely correction such notice of termination shall not be effective.
4.4. In addition to LICENSOR’s termination right described in Section 4.3 above, LICENSOR may terminate this Agreement, without cause and without liability by reason of such termination, by giving LICENSEE one hundred twenty (120) days notice of termination, in which case LICENSEE shall, no later than thirty (30) days after the date of such notice, phase out its use of the LOGO, and completely cease its use of the LOGO (including without limitation cessation of further shipment of QUALIFYING SOFTWARE PROGRAM media which bears labels displaying the LOGO) by the end of such 120-day notice period.
4.5. If LICENSEE becomes insolvent, dissolves, makes an assignment for the benefit of, or enters into any composition or arrangement with, creditors, or if there is an appointment of a receiver or trustee or a liquidation of the business of LICENSEE, or if bankruptcy, reorganization, insolvency or arrangement proceedings or proceedings under any other laws relating to the relief of debtors are commenced by or against LICENSEE, then the license granted under this Agreement shall automatically terminate together with all rights and interests of LICENSEE under this Agreement.
4.6. Upon expiration or termination of this Agreement, all rights and licenses granted to LICENSEE hereunder shall immediately cease, and LICENSEE will refrain all from further use of the LOGO (including without limitation cessation of further shipment of QUALIFYING SOFTWARE PROGRAM media which bears labels displaying the LOGO). Upon expiration or termination of this Agreement, LICENSEE shall not operate its business in any manner that would falsely suggest to the public that this Agreement is still in force. The following provisions shall survive any termination or expiration of this Agreement: Sections 1.3, 2.6, 4, 5, 7, 8, 9, and 10; and LICENSEE’s warranties and representations under Sections 3.1 and 3.2.
5. GOODWILL IN LOGO
5.1. LICENSEE agrees that the essence of this Agreement is founded on the goodwill associated with the LOGO, and the value of that goodwill in the minds of the consuming public. LICENSEE agrees that it is critical that such goodwill be protected and enhanced and, toward this end, LICENSEE agrees to cooperate fully to the extent reasonable and permitted by law with LICENSOR in securing and maintaining the goodwill of LICENSOR in the LOGO. Without limiting the generality of the foregoing, LICENSEE shall not during the term of this Agreement or thereafter:
(a) attack the title or any rights of LICENSOR in or to the LOGO or any of its portions or elements;
(b) apply to register or maintain any application or registration of the LOGO or any other mark confusingly similar to the LOGO in any jurisdiction, domestic or foreign;
(c) misuse the LOGO;
(d) use the LOGO in any manner which may disparage LICENSOR or LICENSOR’s business or any of its products or services
(e) use any colorable imitation or variant form of the LOGO or not specifically approved in writing by LICENSOR;
(f) alter or deface the LOGO in any way except as may be instructed in writing by LICENSOR;
(g) use, in connection with the manufacture, sale, distribution, or promotion of any products or services any mark or name confusingly similar to the LOGO; or
(h) take any action that would tend to destroy or diminish the goodwill in the LOGO.
5.2. LICENSEE acknowledges the validity of the LABVIEW and NATIONAL INSTRUMENTS marks and the LOGO, LICENSOR’s rights in the LABVIEW and NATIONAL INSTRUMENTS marks and the LOGO, LICENSOR’s registrations for the LABVIEW and NATIONAL INSTRUMENTS marks, and the distinctiveness of the LABVIEW and NATIONAL INSTRUMENTS marks and the LOGO. Any and all use by LICENSEE of the LOGO, and appurtenant goodwill, inures solely to the benefit of LICENSOR.
6. MARKING
6.1. LICENSEE agrees that it will designate the QUALIFYING SOFTWARE PROGRAMS on or in connection with which the LOGO is used in a manner as specified from time to time by LICENSOR to indicate the rights of LICENSOR in the LOGO, including without limitation stating (a) the ownership or registration status of the LOGO and (b) that the QUALIFYING SOFTWARE PROGRAMS in connection with which the LOGO is used are offered by LICENSEE pursuant to a license.
6.2. LICENSEE further agrees that it will include, in prominent type and font as specified by LICENSOR, the following legend in all user documentation, and all websites and other marketing materials, pertaining to the QUALIFYING SOFTWARE PROGRAMS on or in connection with which the LOGO is used:
The “COMPATIBLE WITH LABVIEW” logo is a trademark of National Instruments Corporation and is used under a license from National Instruments Corporation. The [name of Qualifying Software Program] software program is a product of [name of LICENSEE], not National Instruments Corporation, and [name of LICENSEE] is solely responsible for the [name of Qualifying Software Program] software program. Neither [name of LICENSEE], nor any of the software programs and other goods and services offered by [name of LICENSEE], are affiliated with, endorsed by or sponsored by National Instruments Corporation.
7. LIABILITY; EXCLUSION AND LIMITATION OF DAMAGES; INDEMNIFICATION; INFRINGEMENT PROCEEDINGS; REMEDY
7.1. LICENSEE agrees that it is wholly responsible for all goods and services offered by it, including without limitation the QUALIFYING SOFTWARE PROGRAMS, and that LICENSOR shall have no liability for any QUALIFYING SOFTWARE PROGRAMS or any other goods or services offered by LICENSEE.
7.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR (A) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES, (B) ANY EXPENSES, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, OR LOST BUSINESS, OR (C) ANY DIRECT DAMAGES IN EXCESS OF $100.00 IN THE AGGREGATE; REGARDLESS OF WHETHER ARISING OUT OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL THEORY; REGARDLESS OF WHETHER ANY REMEDY HAS FAILED OF ITS ESSENTIAL PURPOSE; AND REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY ANY NEGLIGENCE OF LICENSOR OR OTHERS.
7.3. LICENSEE AGREES TO INDEMNIFY AND HOLD HARMLESS LICENSOR, LICENSOR’S AFFILIATES, SUCCESSORS AND ASSIGNS, FROM ANY AND ALL LOSSES, LIABILITIES, CLAIMS, ACTIONS, DAMAGES, COSTS, AND EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES AND EXPENSES) ARISING OUT OF OR IN CONNECTION WITH
(A) THE QUALIFYING SOFTWARE PROGRAMS OR ANY USE OR OPERATION THEREOF (INCLUDING WITHOUT LIMITATION ANY FAILURE OF A QUALIFYING SOFTWARE PROGRAM TO OPERATE PROPERLY, AND ANY CLAIMS OF INFRINGEMENT OR VIOLATION OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, OR OTHER INTELLECTUAL OR INDUSTRIAL PROPERTY RIGHT); EXCEPT FOR ANY CLAIMS OF TRADEMARK OR COPYRIGHT INFRINGEMENT BASED SOLELY ON THE USE OF THE LOGO ON QUALIFYING SOFTWARE PROGRAMS AS EXPRESSLY PERMITTED BY THIS AGREEMENT,
(B) ANY USE OF THE LOGO OTHER THAN AS EXPRESSLY PERMITTED IN THIS AGREEMENT,
(C) ANY FAILURE OF LICENSEE TO TIMELY COMPLY WITH APPLICABLE LAWS, ANY OF THE PROVISIONS OF THIS AGREEMENT, OR ANY INSTRUCTIONS OF LICENSOR UNDER THE LAST SENTENCE OF SECTION 2.5, OR
(D) BREACH BY LICENSEE OF ANY REPRESENTATION OR WARRANTY UNDER THIS AGEEMENT;
REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY ANY NEGLIGENCE OF LICENSOR OR OTHERS.
7.4. LICENSEE will, immediately upon becoming aware, give full written particulars to LICENSOR of (a) any actual or suspected infringement of the rights of LICENSOR in the LOGO and (b) any allegation that the LOGO infringes the rights of any third party. LICENSEE will not make any allegation, admission, settlement, or comment in respect of any such matter without the prior written consent of LICENSOR. At the request and expense of LICENSOR, LICENSEE will give full assistance and take all such steps required in connection with any such matter. Unless otherwise notified to LICENSEE, LICENSOR will have sole right to control the defense and any settlement of any such proceedings and will have sole discretion to decide what action to take and whether or not to bring or defend, or settle or attempt to settle, any proceedings. LICENSEE shall have no right under statute or otherwise to take any action against a third party in relation to the LOGO without LICENSOR’S prior written consent.
7.5. LICENSEE acknowledges and agrees that LICENSOR will suffer substantial and irreparable harm, for which there is no adequate remedy at law, in the event of any failure of LICENSEE to comply with any of its obligations under Section 2.3, 2.4, 2.5, 4.6, 5, 6, or 7.4 of this Agreement. Therefore, in the event of any such failure or threatened failure, LICENSEE agrees that LICENSOR, in addition to all other available remedies, shall be entitled to equitable relief in any court of competent jurisdiction, including without limitation specific performance and immediate injunctive relief, without posting of bond or other security (which bond and other security are hereby irrevocably waived by LICENSEE).
8. NOTICES
All notices or demands required to be made or permitted under this Agreement shall be in writing and shall be given by United States mail, first class postage prepaid, certified or registered, return receipt requested, addressed as to the intended party’s address set forth below its signature on this Agreement, or by fax to such party’s fax number set forth below its signature on this Agreement. Either party may change its address and/or fax number by notice to the other party. Notices shall be effective upon receipt. Notices sent by mail as provided above shall be presumed received five (5) days after depositing in the mail as described above, and notices sent by fax as described above shall be presumed received on the date of electronic confirmation of fax receipt, provided that if the time of such electronic confirmation is after 4:00 PM local time of recipient then such notice shall be presumed received on the next business day. Notwithstanding the foregoing, LICENSOR may notify LICENSEE of changes in the REQUIREMENTS or LOGO usage requirements by email to LICENSEE’s email address set forth below its signature on this Agreement (which notice may reference a web site where such changed REQUIREMENTS or LOGO usage requirements may be found) and such notice shall be deemed received on the next business day after the date of transmission of such email by LICENSOR (LICENSEE’s local time).
9. LAW GOVERNING; FORUM SELECTION; SUBMISSION TO JURISDICTION; ATTORNEYS’ FEES
THIS AGREEMENT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, U.S.A. EXCLUSIVE JURISDICTION FOR DISPUTES ARISING OUT OF THIS AGREEMENT SHALL BE VESTED IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS. IF A COMPLAINT FOR A SUIT ASSERTING SUCH A DISPUTE CANNOT BE FRAMED TO CONFER JURISDICTION UPON THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, SUCH SUIT SHALL BE BROUGHT IN THE DISTRICT COURTS OF THE STATE OF TEXAS IN TRAVIS COUNTY. LICENSEE HEREBY IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS, AND IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO OBJECT TO THE JURISDICTION AND VENUE OF SUCH COURTS AND TO ASSERT THAT ANY OF SUCH COURTS IS AN INCONVENIENT FORUM. If any action is brought by either party to this Agreement against the other regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any relief granted, reasonable attorney fees and court costs.
10. MISCELLANEOUS PROVISIONS
10.1. No Relationship. This Agreement is not intended to create, and shall not be interpreted or construed as creating, a partnership, joint venture, agency, franchise, employment, master and servant, or similar relationship between LICENSOR and LICENSEE, and no representation to the contrary shall be binding upon LICENSOR. Without limiting the generality of the foregoing, LICENSEE shall not be construed to be and shall not represent itself as an agent of LICENSOR.
10.2. Waiver. Failure of either party to insist upon strict performance of the terms, conditions, and provisions of this Agreement shall not be deemed a waiver of such terms, conditions, or provisions or a waiver of future compliance with them. No waiver of any terms, conditions, or provisions shall be deemed to have been made unless expressed in writing and signed by the waiving party.
10.3. No Construction Against Preparer; Headings; Severability; Entire Agreement; Modifications; Counterparts; Binding Effect. Each party to this Agreement acknowledges that it has been represented by or has had the opportunity to consult independent counsel in connection with the negotiation and drafting of this Agreement. Neither this Agreement nor specific language contained herein shall be construed against the party preparing it, but shall be construed as if both parties, and each of them, jointly prepared it, and any uncertainty or ambiguity shall not be interpreted against any one party. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Agreement. If any provision of this Agreement is held invalid or unenforceable, such provision will be modified so as to be valid and enforceable and, as modified, shall be fully enforced, and the remainder of this Agreement will continue in full force and effect. This Agreement, together with all exhibits referenced in it and attached hereto, embodies the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior agreements, representations, discussions and communications, whether oral or written, with respect to such subject matter. This Agreement may not be amended, altered, modified or rescinded except by a written agreement executed by both parties. This Agreement may be executed in multiple counterparts (which may include facsimile, and which may include electronically signed counterparts), each of which, when so executed, shall be deemed to be an original copy hereof, and all such counterparts together shall constitute one single agreement. Provision of a draft or sample of this Agreement is not an agreement or offer by LICENSOR or otherwise binding on LICENSOR. Upon execution this Agreement shall be binding on the parties to this Agreement and their respective successors, heirs and assigns, as permitted herein. The individual signing this Agreement on behalf of LICENSEE, by electronic signature or otherwise, represents and warrants that such individual has the authority to bind LICENSEE to this Agreement.
LOGO Usage Requirements:
LICENSEE must display the “TM” symbol with the LOGO as shown above. In addition to the other requirements of the Agreement with respect to the use of the LOGO. Guidelines at www.ni.com/trademarks apply with respect to the LOGO as applicable to NI Trademarks generally as stated therein.