EASTMAN KODAK COMPANY

KODAK REMOTE BUSINESS MANAGER

 

SOFTWARE LICENSE AGREEMENT

 

1.                  License Subject to Kodak Remote Business Manager Terms and Conditions.

 

This Software License Agreement (“License”) is subject to, and made part of, the terms of the Kodak Remote Business Manager Terms and Conditions entered into by and between Kodak and the Customer identified therein.  Terms not defined herein have the meaning set forth elsewhere in the Terms and Conditions.  By accessing or using the Kodak Remote Business Manager, You agree to be bound by the terms of this License.

 

2.                  Grant of License.

 

Subject to the terms of this License, Kodak grants Customer and employees of Customer (collectively, “You”), and You hereby accept a non-exclusive, non-transferable license to:

 

(i)                  execute the software and related data files, including updates, revisions and improvements, installed by Kodak, whether onsite or remotely, on the Customer Equipment as part of the Service (the “Client Software”) only in object code format and only on or in connection with the operation of such Customer Equipment;

 

(ii)                remotely access and use the server software and related data files, including updates, revisions  and improvements, made available by Kodak via the Internet as part of the Service (the “Server Software”) only in object code format and only in connection with the operation of the Customer Equipment (the Server Software and the Client Software collectively constitute the “Software”); and

 

(iii)               make a reasonable number of copies of any user documentation regarding the Services and Software made available to You by Kodak as part of the Services (the “Documentation”) and distribute such copies solely to employees of Customer for their use in using the Software and receiving the Services (the Software and the Documentation collectively constitute the “Licensed Property”).

 

3.                  Restrictions.

 

You agree that you shall:

 

(i)                  not access or use the Server Software for the benefit of any third parties or make it available for use by any third parties;

 

(ii)                retain the copyright and trademark notices on all copies of the Documentation made by Customer;

 

(iii)               not assign any of Your rights, duties or obligations under this License;

 

(iv)              not authorize or otherwise appoint any dealers, agents, representatives, distributors, re-sellers, original equipment manufacturers, value-added resellers, systems integrators or other third parties to use, copy, distribute or support the Licensed Property;

 

(v)                not disassemble, decompile, reverse engineer, copy, modify, transcribe, store, translate, sell, lease, make publicly available, or otherwise transfer or distribute any of the Software, in whole or in part, without prior authorization in writing from Kodak;

 

(vi)              use reasonable measures to prevent access to or use of the Software by any party other than Customer’s employees;

 

(vii)             abide by any limit regarding the maximum number of employees permitted to access and use the Server Software set forth in the Service Order;

 

(viii)           be responsible for all use of userid’s and passwords provided to You by Kodak until such userid’s or passwords are revoked by Kodak; and

 

(ix)              have no right to install the Software on any computer or other equipment.

 

4.                  Compliance with Law.

 

You shall not use or permit the Licensed Property to be used (a) in violation of any applicable federal, state, or local laws or regulations; or (b) in ways that infringe the rights of others, or interfere with other users of Kodak services, networks or other networks.

 

5.                  Copyright.

 

The Software is owned by Kodak or its suppliers and is protected by copyright laws and international treaties.  You may not copy the Software.

 

6.                  Term.

 

This License shall continue until expiration or termination of the Agreement, at which time this License shall automatically terminate.  This License will also terminate if You fail to comply with any term or condition of the License. Upon termination of this License, all rights granted to You under this License shall immediate terminate, You shall permit Kodak to remove or delete the Client Software from the Customer Equipment, and You shall cease accessing or using the Server Software.

 

7.                  Changes to the Licensed Property.

 

Kodak reserves the right at any time to make changes to the Licensed Property whenever such changes facilitate the performance of Software. Any such changes shall be deemed part of the Licensed Property and subject to the terms of this License.

 

8.                  Limited Warranty.

 

For a period of ninety (90) days after the date of the installation of the Client Software, Kodak warrants to Customer that when executed as intended on the Customer Equipment, the Client Software will perform substantially in accordance with the Documentation.  No warranty claims shall be allowed unless provided to Kodak in writing prior to the end of such ninety (90) day period.  Kodak does not warrant that the functions contained in the Software will meet Customer’s requirements or that the operation of the Software will be uninterrupted or error free. KODAK MAKES NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE.

 

9.                  Limitation of Remedies.

 

Kodak’s entire liability and Customer’s exclusive remedy for a breach of the warranty set forth in Section 6 shall be, at Kodak’s option, either (a) the repair or replacement of the Software not meeting Kodak’s “Limited Warranty”, or (b) terminate the applicable Service Period and refund to Customer any unused fees that have been prepaid for any portion of any then-current Service Period that has been so terminated. These remedies are not available if failure of the Software is the result of misuse, abuse, or a failure to follow the operating instructions in the accompanying written technical documentation.  No warranty claims shall be allowed unless submitted in writing to Kodak prior to the end of the 90-day warranty period.  IN NO EVENT WILL KODAK OR ITS SUPPLIERS OR DEALERS BE LIABLE TO YOU FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR OTHER DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

10.              U.S. Government Restricted Rights.

 

The Licensed Property is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subdivision (c)(1)(ii) of The Rights in Technical Data and Computer Software clause DFAR 252.227-7013 or such other applicable government or agency regulation providing equivalent protection. Contractor/manufacturer is Eastman Kodak Company, 343 State Street, Rochester, New York 14650.

 

11.              Governing Law.

 

This Agreement will in all respects be governed by and interpreted, construed and enforced in accordance with the laws of the State of New York, excluding its choice of law rules and excluding the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.  Any litigation arising out of or relating to this Agreement shall be conducted exclusively in the U.S. federal or state courts located in Monroe County, New York.