CHROMATIK / LX SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT

This Software License and Distribution Agreement (the "Agreement") is entered into by and between Heron Arts LLC, with offices at 7 Heron Street, San Francisco, CA 94103 ("Heron Arts") and you ("Licensee"). By clicking "I Accept" or downloading the Software (as defined below), you agree to the following terms:
  1. Definitions.
    1. "Application" means a Licensee installation or project that includes the Software, in object code or executable form only.
    2. "Effective Date" means the date you first obtain a copy of the Software.
    3. "Revenue Limit" means the gross revenue accrued by Licensee in connection with all Licensee Applications, taken together, for any 12-month period during the term of this Agreement, with no deductions.
    4. "Software" means the Heron Arts LX, GLX, Chromatik, and LX Studio software libraries, including all Updates supplied by Heron Arts under this Agreement.
    5. "Update" means any correction, update, upgrade, patch or other modification or addition to the Software made available to Licensee by Heron Arts.
  2. License.
    1. Grant. Subject to the limitations of this Section 2, Heron Arts hereby grants to Licensee a nonexclusive, worldwide, non-transferable, non-sublicenseable license, during the term of this Agreement: (i) to modify the Software to create Applications that add substantial value to the Software; (ii) to distribute copies of the Software, in object code form only, only as part of Applications in accordance with this Section 2; (iii) to use the Software to run Applications, including to provide a service consisting of display of the Applications; and (iv) to reproduce copies of the Software, solely as necessary to exercise the rights granted in clauses (i) through (iv). Licensee may not sublicense any of these rights or licenses to any third party. Licensee shall not provide any third party with access to the source code for the Software without Heron Arts' prior written permission.

      The license granted in this Section 2.1 is subject to a Revenue Limit of $25,000 and is only valid for Applications that fall within such Revenue Limit. The license granted herein is royalty free, in consideration of the Revenue Limit being a condition of the license granted herein.
    2. End User Licensing. If the Application is distributed, provided or sold pursuant to an agreement between Licensee and an end user, Licensee shall distribute each copy of the Software with an end user license agreement on the same licensing terms applicable to the remainder of the Application, but that is at least as favorable to Heron Arts as this Agreement.
    3. Proprietary Notices. On each Software copy, Licensee shall reproduce all copyright or other proprietary notices contained on the Software, as provided by Heron Arts. Licensee shall not alter or remove or in any other way obscure or hide from display any Heron Arts, Chromatik, or LX Studio logo or proprietary notice from the Application user interface or in the Software.
    4. Third Party Open Source Software. Notwithstanding Section 2.1, Licensee acknowledges that certain components of the Software may be covered by so-called "open source" software licenses ("Open Source Components"), which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses. To the extent required by the licenses covering Open Source Components, the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement. To the extent the terms of the licenses applicable to Open Source Components prohibit any of the restrictions in this Agreement with respect to such Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of the licenses applicable to Open Source Components require Licensor to make an offer to provide source code or related information in connection with the Open Source Components, such offer is hereby made.
  3. Ownership. As between the parties, Heron Arts will retain all right, title, and interest in the Software, and all intellectual property rights therein.
  4. Use of Heron Arts Trademarks. Licensee shall state that the Application includes the Software and may use such applicable trademarks, trade names and logos of Heron Arts (including the Chromatik and LX Studio trademarks) as required to do so (collectively, the "Heron Arts Trademarks"). Any and all good will arising from Licensee's use of the Heron Arts Trademarks will inure solely to the benefit of Heron Arts. Licensee shall not assert any claim to the Heron Arts Trademarks (or any confusingly similar mark) or such good will. Licensee shall not register any Heron Arts Trademark, or any mark confusingly similar to any Heron Arts Trademark, in any jurisdiction.
  5. Heron Arts Portfolio. (i) Licensee hereby grants to Heron Arts the right to publicize Licensee's use of the Software and (ii) Heron Arts may use Licensee's logo on the Chromatik or LX Studio website in areas naming licensees of the software, and in Chromatik or LX Studio portfolios or marketing presentations listing licensees of the Software.
  6. Term and Termination.
    1. Term. This Agreement will commence on the Effective Date and continue unless and until terminated as described herein.
    2. Default. If Licensee defaults in the performance of any of its material obligations hereunder this Agreement and the licenses granted herein will automatically terminate.
    3. Insolvency. This Agreement and the licenses granted herein will automatically terminate, (i) upon the institution by Licensee of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of its debts, (ii) upon the institution of such proceedings against Licensee, which are not dismissed or otherwise resolved in its favor within 60 days thereafter, (iii) upon Licensee making a general assignment for the benefit of creditors, or (iv) upon Licensee's dissolution or ceasing to conduct business in the ordinary course.
    4. Survival. The parties' rights and obligations of Sections 1, 3, 4, 5, 6.4, 7, 8 and 9 will survive any termination or expiration of this Agreement. Upon expiration or termination of this Agreement, all of Licensee's rights and licenses with respect to the Software will terminate, except each Software end user license properly granted as part of an Application before the effective date of termination will survive in accordance with its terms.
  7. Warranty Disclaimer.
    1. DISCLAIMER. HERON ARTS MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE.
  8. LIMITATION OF LIABILITY. HERON ARTS'S LIABILITY ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED $50. HERON ARTS WILL NOT BE LIABLE FOR LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT. LICENSEE ACKNOWLEDGES THAT THE ROYALTY-FREE NATURE OF THE LICENSE HEREIN IS BASED IN PART UPON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
  9. General. This Agreement is the entire agreement between the parties on the subject matter hereof. No amendment or modification hereof will be valid or binding upon the parties unless made in writing and signed by the duly authorized representatives of both parties. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venturer of the other. In the event that any provision of this Agreement is held to be unenforceable, this Agreement will continue in full force and effect and will be interpreted to reflect the original intent of the parties. This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles. The parties consent to the personal and exclusive jurisdiction of courts located in San Francisco, California. Licensee may not assign this Agreement (by operation of law or otherwise) without the prior written consent of Heron Arts, and any prohibited assignment will be null and void. Heron Arts may assign this Agreement without consent in its sole discretion. This Agreement will be binding upon and will inure to the benefit of the parties permitted successors and assignees. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.