|
Agreement No. 04012012001
<br />8.3 Licensee's Ownership. DMP acknowledges that the Peripheral Products in any form, and any copies thereof,
<br />including, without limitation, any portion thereof which may have been given to DMP, are the sole property of Licensee. DMP shall
<br />not have any right, title, or interest in or to said Peripheral Products or the Peripheral Products data or documentation or any copies
<br />of the foregoing except as expressly provided in this Agreement. DMP shall secure and protect Peripheral Products consistent with
<br />the terms of this Agreement. All copyrights associated with Peripheral Products, and all other rights thereto not specifically granted
<br />to DMP in this Agreement are reserved by Licensee. Nothing contained in this Agreement shall be construed as conferring any
<br />license or right upon DMP or Contributors with respect to any Licensee logo, seal, product name, or the corporate name of
<br />Licensee.
<br />9. CONFIDENTIALITY AND INJUNCTIVE RELIEF.
<br />9.1 Acknowledgment. Licensee hereby acknowledges and agrees that the Licensed Products are valuable and
<br />proprietary, embodying substantial creative efforts, trade secrets, and confidential information, ideas, and expressions of
<br />Contributors or DMP. Accordingly, Licensee agrees to treat the Licensed Products as confidential information in accordance with the
<br />confidentiality requirements and conditions set forth below.
<br />9.2 Acknowledgment. DMP hereby acknowledges and agrees that the Derivative Products and /or Peripheral Products are
<br />valuable proprietary products, embodying substantial creative efforts, trade secrets, and confidential information, ideas and
<br />expressions of Licensee. Accordingly, DMP agrees to treat (and take precautions to ensure that its employees treat) the Derivative
<br />and /or Peripheral Products as confidential information of the Licensee in accordance with the confidentiality requirements set forth
<br />below.
<br />9.3 Injunctive Relief. Licensee acknowledges that the unauthorized use, transfer, assignment, sublicensing, or disclosure
<br />of the Licensed Products, Documentation, Derivative Products or copies thereof will (i) substantially diminish the value to
<br />Contributors of the trade secrets, copyrights, and other proprietary interests that are the subject of this Agreement; (ii) render
<br />DMP's remedy at law for such unauthorized use, disclosure, or transfer inadequate; and (iii) cause irreparable injury. If Licensee
<br />breaches any of its obligations with respect to the use or confidentiality of the Licensed Products, Documentation, or Derivative
<br />Products, DMP shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and
<br />permanent injunctive relief.
<br />9.4 Iniunctive Relief. DMP acknowledges that the unauthorized use, transfer, assignment, sublicensing, or disclosure of
<br />the Peripheral Products and /or Derivative Products or copies thereof will (i) substantially diminish the value to Licensee of the
<br />Peripheral Products and /or Derivative Products; (ii) render Licensee's remedy at law for such unauthorized use, disclosure, or
<br />transfer inadequate; and (iii) cause immediate irreparable injury. If DMP breaches any of its obligations with respect to the use or
<br />confidentiality of the Peripheral Products and /or Derivative Products, Licensee shall be entitled to equitable relief to protect its
<br />interests therein, including, but not limited to, preliminary and permanent injunctive relief.
<br />9.5 Maintenance of Confidential Information. Each party agrees to keep confidential all confidential information disclosed
<br />to it by other party in accordance herewith, and to protect the confidentiality thereof, in the same manner in which it protects the
<br />confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the
<br />protection of confidential information); provided, however, that neither party shall have such obligation with respect to the use or
<br />disclosure to others of any confidential information that can be established to have: (a) been known publicly; (b) been known
<br />generally in the industry before communication by the disclosing party; (c) become known publicly, without fault on the part of the
<br />receiving party, subsequent to disclosure by the disclosing party; (d) been known otherwise by the receiving party before
<br />communication by the disclosing party; (e) been received by the receiving party without any obligation of confidentiality from a
<br />source (other than DMP) lawfully having possession of such information or, (f) which is required to be disclosed pursuant to any
<br />local, state or federal law or regulation. Upon (presentation of just cause and) ten (10) days' written notice to Licensee, DMP shall
<br />have the right to inspect and audit Licensee's procedures and to examine Licensee's computer systems in order to determine
<br />whether such procedures and computer systems comply with the requirements set forth in this Agreement.
<br />10. WARRANTY.
<br />10.1 Limited Warranty. DMP represents and warrants to Licensee that the Licensed Product will perform in all
<br />material respects. DMP further represents and warrants that it has the right to enter into this Agreement and to grant Licensee the
<br />rights granted hereunder. Should DMP be in breach of its representation and warranty under this Section 10.1, DMP's entire liability
<br />and Licensee's exclusive remedy under this Agreement shall be, at DMP's option, which option shall be exercised, within thirty (30)
<br />business days from the date of Licensee's notice of breach, either (i) return the Licensed Product(s) in exchange for the full refund
<br />of all of the fees paid for such Licensed Product, or (ii) repair or replace the Licensed Product upon its return to DMP provided,
<br />however, that DMP receives written notice from Licensee of a breach of warranty. Any replacement Licensed Product will be
<br />warranted for the remainder of this Agreement.
<br />Page 8 of 13
<br />
|