“HEAD – END EQUIPMENT ROOM” means such room within the CLIENT premises, being a secure, air-conditioned and limited access area, as is agreed to be suitable by the parties for the installation and storage of the HOTstream head-end equipment forming part of the HOTstream System and any other HOTstream Equipment that the CLIENT shall be supplied from time to time.
“CLIENT”: means the licensee to whom the HOTstream software license is granted “HOTstream™ Equipment” means all equipment and hardware, supplied to the CLIENT as part of the HOTstream System.
“HOTstream™ Server” means the server supplied as part of the HOTstream System; “HOTstream™ Software”: means the software listed on the front of this Software License as well as any third party software embedded in the HOTstream Equipment as supplied to the CLIENT as part of the HOTstream System “HOTstream™ System” means the elements of the HOTstream system “INSTALLED AREA” means any meeting room, conference suite or other area of the CLIENT in which HOTstream Equipment has been installed;
“INSTALLED ROOM” means any room on the CLIENT premises in which HOTstream Equipment has been installed, which is necessary for the System to operate and for Users to access the Services;
“MCOMS” means the licensor of the HOTstream Software
“Partner” means MCOMS’s representative listed on the front.
“Site” means the CLIENT site listed on the front of this Software License; “Virus” means any computer code intentionally designed to disrupt, disable, harm or impede the operation of any computer program, or any other associated software, firmware, hardware, or computer system (including without limitation local area or wide-area networks), in a manner not intended by the creator of such computer program, software, firmware, hardware or computer system;
“User” means any guest, visitor or other person that uses the System at the CLIENT.
2.1 MCOMS grants to the CLIENT a non-exclusive, terminable, royalty free, non-transferable license to use the HOTstream Server Software on one server, at the Site of the CLIENT’s rooms (the “CLIENT Rooms”).
2.2 MCOMS grants to the CLIENT a non-exclusive, terminable, royalty free, non- transferable license to use the HOTstream Software on one PC, in a single area of the CLIENT (the “Reception Site”), for the CLIENT Rooms at the Site.
2.3 MCOMS grants to the CLIENT a non-exclusive, terminable, royalty free, non-transferable license to use the HOTstream user interface, the HOTstream set-top box and the HOTstream PC client application in set-top boxes which are installed at the Site.
2.4 MCOMS grants to the CLIENT a non-exclusive, terminable, royalty free, non- transferable license to use the third party software which is embedded in the HOTstream System. Such software may be subject to additional terms from the relevant third party licensor. Such terms may be delivered to the CLIENT from time to time.
3.1 The HOTstream Software contains confidential information of MCOMS (and its licensors) and all intellectual property rights therein, including all patents, inventions, copyrights, database rights, design rights, trade marks, trade names, logos, trade secrets, know how and all applications for the same and all rights of a similar nature existing anywhere in the world, whether registered or not, are and shall remain the exclusive property of MCOMS (or its licensors) and are protected by United States and international laws.
3.2 The CLIENT will not:
(a) copy, reproduce or duplicate the whole or any part of the HOTstream Software or the related intellectual property rights in any form or medium, other than as expressly permitted by this Software License;
(b) modify, adapt, amend, incorporate, merge, or otherwise alter the whole or any part of the HOTstream Software;
(c) decompile (other than for the purpose of interoperability in accordance with applicable law), reverse engineer or otherwise disassemble any part of the HOTstream Software;
(d) remove or alter any copyright or other proprietary notice on any part of the HOTstream Software;
(e) assign, distribute, supply, sell, sub-license, lease, rent, charge or otherwise deal in, exploit or encumber the HOTstream Software;
(f) use the HOTstream Software on behalf of any third party; or
(g) transfer the license to use the HOTstream Software.
3.3 The CLIENT will:
(a) keep confidential the HOTstream Software and limit access to those persons to whom such disclosure is necessary for its operations;
(b) notify MCOMS immediately if the CLIENT becomes aware of any unauthorized use of the whole or any part of the HOTstream Software by any third party (including any User);
(c) without prejudice to the foregoing, take all such other steps, at its own expense, as shall from time to time be necessary to protect the confidential information and intellectual property rights of MCOMS (and its licensors) in the HOTstream Software;
(d) maintain the HOTstream Software in a secure fashion and take all reasonable measures to protect t from theft, copying, reproduction, or unauthorized distribution, disclosure, dissemination or use.
3.4 The CLIENT may only make one copy the HOTstream Software. That copy may only be used for back up purposes. The CLIENT shall insure that the copy is clearly identified as a back-up copy, all intellectual property rights in which are owned by MCOMS (or its licensor), and shall on request disclose to MCOMS the location of such copies and produce the copy.
3.5 The CLIENT’s obligations under this Clause 3 shall survive termination of this Software License for any reason whatsoever.
To the extent that the HOTstream Software includes third party software which is embedded in the HOTstream Software or System, the license granted in Clause 2 shall be subject to additional restrictions and license terms imposed by the licensors of that third party software. Any additional restrictions or license terms shall be provided to the CLIENT.
5.1 MCOMS warrants that it has the authority to license the HOTstream Software in accordance with the terms and conditions of this Software License.
5.2 Subject to the remainder of this Clause 5, MCOMS warrants to the CLIENT that for six (6) months from the date of installation of the HOTstream Software, the HOTstream Software will operate in all material respects in substantial accordance with its documentation. Except for the above warranty, the Software is provided as is without any other warranty of any kind. MCOMS makes no implied warranties, and except as expressly set forth in this Software License, no other express warranties.
5.3 In the event that the warranty in Clause 5.2 is breached, the CLIENT must notify MCOMS as soon as possible and in any event no later than six (6) months from the date of installation of the HOTstream Software. The CLIENT must give MCOMS a reasonable time to fix the problem and (if necessary) to supply the CLIENT with a corrected version of the HOTstream Software, at MCOMS’s cost. This shall be MCOMS’s sole obligation and the CLIENT’s sole remedy in the event of a breach of the warranty in this Clause 5.
5.4 MCOMS will not be liable for breach of any of the warranties or other terms in this Software L:icense to the extent that the breach arises from:
(a) use of the HOTstream Software other than in accordance with normal operating procedures as described in documentation that relates to it or as otherwise delivered to the CLIENT by MCOMS;
(b) any alterations to the HOTstream Software made by anyone other than MCOMS or someone authorized by MCOMS;
(c) any problem with the computer on which the HOTstream Software is installed, any equipment connected to that computer or any other software which is installed on that computer;
(d) any abnormal or incorrect operating conditions; or
(e) use of the HOTstream Software in combination with any other hardware or software, unless this use has been approved by MCOMS in writing.
5.5 MCOMS does not give any warranty the HOTstream Software will be free from Viruses or defects, that it will be error free or its use uninterrupted, that it will meet any performance specifications, that it will not damage any files, data, other software, hardware, networks, etc.
6.1 To the maximum extent permitted by applicable law, in no event will MCOMS be liable for any compensation, damage or loss (direct or indirect- including without limitation punitive, incidental or consequential loss or damages for loss of business profits, loss of revenue, loss of goodwill or loss of anticipated savings or any other related loss) caused to the CLIENT arising from or relating to the use or installation of the HOTstream Software. In any case MCOMS’s sole responsibility is the repair or replacement of the Software that does not meet MCOMS’s limited warranty as specified in Clause 5.2. In no event will MCOMS’s aggregate liability exceed the license fees paid by CLIENT to MCOMS under this Software License.
7.1 This Software License may be terminated immediately by MCOMS if:
(a) the CLIENT commits any material breach of any term of this Software License which (in the case of a breach capable of being remedied) is not remedied within 14 days of written notice to remedy the same; or
(b) the CLIENT commits any breach of any additional restrictions or license terms which apply to third party software embedded in the HOTstream Software or System, which have been provided to the CLIENT under Clause 4.
7.2 Following the termination of this Software License, MCOMS or its Partner, may enter the CLIENT premises, the Head-end Equipment Room, the Installed Rooms and the Installed Areas and remove the HOTstream Software.
7.3 Upon termination of this License, the CLIENT will have no right to claim a refund of amounts paid for the HOTstream Software.
7.4 The CLIENT shall indemnify, defend and hold harmless MCOMS against any and all damages, costs, losses, expenses, liability, claims or demands which may be incurred, suffered or made against it, or which arise out of any breach by the CLIENT of its obligations under this Software License or any willful, unlawful or negligent act or omission of the CLIENT.
7.5 To the maximum extent permitted by applicable law, in no event will MCOMS be liable for any compensation, damage or loss (direct or indirect- including without limitation damages for loss of business profits or any other related loss) caused to the CLIENT due to the use or installation of the HOTstream Software. In any case MCOMS’s sole responsibility is the repair or replacement of the Software that does not meet MCOMS’s limited warranty as specified in Clause 5.2.If this Software License is terminated, the CLIENT’s right to use the HOTstream Software shall immediately terminate.
8.1 No breach of any provision of this Software License shall be waived or discharged except with the express written consent of the parties.
8.2 No failure or delay by a party to exercise any of its rights under this Software License shall operate as a waiver thereof and no single or partial exercise of any such right shall prevent any other or further exercise of that or any other right.
If any provision of this Software License is or becomes for any reason invalid, illegal or unenforceable, it shall be divisible from this license and shall be deemed to be deleted from it and the validity of the remaining provisions shall not be affected in any way.
10.1 This Software License and any dispute or claim whatsoever relating to it or its formation shall be governed by and construed in accordance with the laws of Delaware and the parties submit to the exclusive jurisdiction of the federal and state courts located in Delaware.
10.2 Notwithstanding anything in this Software License, MCOMS may bring proceedings in any state or federal court which has jurisdiction, for the purpose of seeking injunctive, equitable or other non-monetary relief (or its equivalent in such other state) to protect its intellectual property rights and/or confidential information.