CITRIX SYSTEMS, INC.
CITRIX RECEIVER DISTRIBUTION AGREEMENT
IMPORTANT - READ CAREFULLY: BY CLICKING TO ACCEPT THIS AGREEMENT OR OTHERWISE USING OR DISTRIBUTING THE “SOFTWARE” (DEFINED BELOW), YOU ARE ACKNOWLEDGING THAT YOU ARE AUTHORIZED TO ENTER INTO THIS CITRIX RECEIVER DISTRIBUTION AGREEMENT (“Agreement”) ON BEHALF OF A LEGAL ENTITY (“LICENSEE”) AND AGREE TO ALL THE TERMS OF THIS AGREEMENT REGARDING LICENSEE’S USE AND DISTRIBUTION OF THE SOFTWARE PROVIDED TO OR DOWNLOADED BY YOU. IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT, CLICK THE “I DISAGREE” BUTTON TO STOP INSTALLATION OF THE SOFTWARE AND IMMEDIATELY CONTACT CITRIX SYSTEMS, INC. (“Citrix”) FOR RETURN OF THE SOFTWARE AND ALL OTHER RELATED MATERIALS PROVIDED TO YOU. CITRIX IS A DELAWARE CORPORATION WITH PRIMARY OFFICES AT 851 W. CYPRESS CREEK RD., FORT LAUDERDALE, FL 33309.
1.1. “Citrix Products” means those Citrix products that Licensed Products will communicate with by way of the Software.
1.2. “Documentation” means documentation, if any, associated with the Software.
1.3. “End User” means the person or entity who places a Licensed Product in productive use and who does not re-market the Licensed Product in the ordinary course of its business.
1.4. “Licensed Products” means Licensee’s products, licensed or sold by Licensee to Resellers and End Users that will interface with Citrix Products through the Software.
1.5. “Resellers” mean distributors and subdistributors within Licensee’s distribution channel which market and deliver Licensed Products in the form in which the products are received from Licensee.
1.6. “Software” means Citrix Receiver™ computer code in machine executable object code format licensed hereunder, including any updates, bug fixes or error corrections or other minor enhancements that Citrix may issue from time to time in its sole discretion.
2. GRANT OF DISTRIBUTION RIGHTS
2.1. Grant. Subject to the terms and conditions of this Agreement and during its term, Citrix grants to Licensee a worldwide, non-exclusive, non-transferable, royalty-free, revocable license to:
2.1.1. reproduce the Software in machine executable object code format and the Documentation for distribution to Resellers or End Users solely when embodied within or installed with the Licensed Products for use with Citrix Products; and
2.1.2. sublicense the rights to perform, display and use the Software in machine executable object code format and the Documentation to Resellers or End Users solely when embodied within or installed with the Licensed Products for use with the Citrix Products.
2.2. Restriction on license. Licensee agrees that it will not (i) make modifications to, decompile, reverse engineer or otherwise decode or alter the Software or additional software delivered to Licensee hereunder, or (ii) modify, remove or obscure functions in Software or Citrix Products, nor shall Licensee offer such functions to its Resellers or End Users. Licensee further agrees that it will not modify, remove or obscure any proprietary notices contained on or within the Software and Documentation and all copies of the Software and Documentation reproduced or distributed by or for Licensee shall contain copyright, trademark and other proprietary notices, including those of Citrix and its licensors (if any) in the same manner in which Citrix incorporates such notices in the Software and Documentation.
2.3. Terms of Distribution. Licensee agrees that it will distribute the Software and Documentation to its Resellers and End Users pursuant to such license agreements as Licensee customarily uses to distribute other similar software. Except as permitted in this Agreement, Licensee shall contractually prohibit and shall require its Resellers to contractually prohibit End Users and all entities in the chain of distribution from: (i) using, copying (except as necessary for back-up or archival purposes or to the extent expressly permitted by applicable law and to the extent that Citrix is not permitted by that applicable law to exclude or limit such rights), modifying, or transferring the Software or any copy in whole or in part, or granting any rights in the Software or accompanying Documentation; (ii) translating, reverse engineering, decompiling, disassembling, or creating derivative works based on the Software or the accompanying Documentation; (iii) renting or leasing the Software or accompanying Documentation; or (iv) removing any proprietary notices, labels, or marks on the Software or accompanying Documentation.
2.4. Delivery. Licensee acknowledges receipt of the Software in machine executable object code format together with Documentation files in electronic format from Citrix. Licensee shall be responsible for copying the Software and Documentation, packaging the Software and Documentation for shipment, creating and generating CD labels, and printing copies of the Documentation.
3. WARRANTY DISCLAIMER
3.1. Disclaimer of warranty. The Software is provided “as is” and without representation or warranty of any kind. CITRIX DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE FOR MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT AND/OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY EXCLUDED. NO SPECIFICATION OR OTHER DESCRIPTION, NO SAMPLE, NO PROTOTYPE AND NO DEMONSTRATION PRODUCT OR SYSTEM SHALL OPERATE AS A WARRANTY OF ANY KIND REGARDING ANY SOFTWARE. CITRIX SHALL NOT BE LIABLE FOR ANY ERROR, OMISSION, DEFECT, DEFICIENCY, OR NONCONFORMITY IN THE SOFTWARE OR THE DOCUMENTATION AND DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR FREE.
3.2. Ultra-hazardous activities. The Software and Citrix Products are not designed, manufactured or intended for use in any environment in which the failure of the Software or Citrix Products could lead to death, personal injury, or severe physical or environmental damage, such as in the design or operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems or in the on-line control of equipment in any hazardous environment requiring fail-safe performance (“Ultra-hazardous Activities”). Citrix, its licensors and suppliers specifically disclaim any express or implied warranty of fitness for Ultra-hazardous Activities. Licensee represents and warrants to Citrix that it will not use or resell the Software for such purposes. Licensee agrees to defend and indemnify Citrix against any loss, liability, or damage of any kind that Citrix incurs as a result of Licensee’s breach of the warranty in the preceding sentence.
Citrix shall have no support obligations with respect to the Software. Citrix may, in its sole discretion, provide limited technical assistance to Licensee with respect to the Software.
5. TERM AND TERMINATION
5.1. Initial and renewal terms. The initial term of this Agreement (“Initial Term”) shall run for one (1) year from the Effective Date. After the Initial Term, this Agreement shall renew automatically each year for a one year term, unless either party gives sixty (60) days written notice of its intent to allow this Agreement to expire at the end of the then current term.
5.2. Termination for cause. This Agreement may be terminated by either party upon notice to the other party that it has materially breached any term or condition of this Agreement and fails to remedy the breach within thirty (30) days after being given notice thereof.
5.3. Termination for insolvency. This Agreement may be terminated by either party upon notice, in the event that any of the following occur(s): (i) voluntary institution by the other party of insolvency, receivership, bankruptcy, or any other proceedings for the settlement of the other party's debt; (ii) involuntary institution of insolvency, receivership, bankruptcy, or any other proceedings for the settlement of the other party’s debt; which proceedings are not resolved within sixty (60) days, (iii) the making of a general assignment by the other party for the benefit of creditors; or (iv) the dissolution of the other party.
5.4. Return of materials. In addition to the Documentation, all of Citrix’s trademarks, marks, trade names, patents, copyrights, designs, drawings, formulas or other data, photographs, samples, literature, and sales aids of every kind will remain the property of Citrix. Within thirty (30) days after the termination or expiration of this Agreement, Licensee will prepare all such items in Licensee’s possession, and will collect such materials in its Resellers’ possession, for shipment as Citrix may direct, at Citrix’s expense. Licensee will not make or retain any copies of any confidential items or information, which may have been entrusted to it. Effective upon the termination or expiration of this Agreement, Licensee will cease to use all trademarks and trade names of Citrix.
5.5. Destruction of inventory. Upon expiration or earlier termination of this Agreement, Licensee shall destroy or erase (as applicable), and shall certify to Citrix the destruction or erasure of: (i) all copies of the Software in any form in the possession of Licensee or any Reseller, including all Documentation, and (ii) all other materials related to the Software or Documentation in Licensee's possession or control not otherwise dealt with under subsection 5.4 above. Citrix or its designated agent or representative shall have the right to inspect Licensee’s premises to satisfy itself of Licensee’s compliance with this Section.
5.6. Survival of certain terms. The provisions of Sections 1, 2.2, 3, 4, 5, 6, 8, 9 and 10 as well as End User licenses properly granted by Licensee, will survive the termination or expiration of this Agreement for any reason. All other rights and obligations of the parties will cease upon termination or expiration of this Agreement.
6. PROPERTY RIGHTS AND CONFIDENTIALITY
6.1. Software. Licensee agrees that Citrix owns all right, title, and interest in the Software, including, without limitation, the Documentation, now or hereafter subject to this Agreement, and in all of Citrix’s patents, trademarks, trade names, inventions, copyrights, know-how, and trade secrets relating to the design, manufacture, operation or service of the Software.
6.2. Confidentiality. Licensee acknowledges that by reason of its relationship to Citrix hereunder it will have access to certain information and materials concerning Citrix’s business, plans, customers, technology, Software and Citrix Products that are confidential and of substantial value to Citrix, which value would be impaired if such information were disclosed to third parties. For purposes of this Agreement, “Confidential Information” shall mean all nonpublic information, whether in oral, written or other tangible form that Citrix designates as being confidential or which, under the circumstances surrounding disclosure, Licensee knows or has reason to know should be treated as confidential. Upon request by Licensee, Citrix shall advise whether or not it considers any particular information or materials to be confidential. Licensee agrees that it will not use the Confidential Information for any purpose other than in furtherance of, and in accordance with, this Agreement and shall not use the Confidential Information in any other way for its own account or the account of any third party, nor disclose to any third party, any such Confidential Information revealed to it by Citrix. Licensee shall take every reasonable precaution to protect the confidentiality of Confidential Information. Licensee shall not publish any technical description of the Software or Citrix Products beyond the description published by Citrix. In the event of termination of this Agreement, there shall be no use or disclosure by Licensee of any Confidential Information of Citrix, and Licensee shall not manufacture or have manufactured any products utilizing any Confidential Information. The provisions of this Section shall not apply to information: which is (or becomes) available to the public other than by breach of this Agreement or of any other duty; which is already in Licensee’s possession prior to disclosure by Citrix or is independently obtained by Licensee in circumstances under which Licensee is free to disclose it; which is independently developed by Licensee without reference to Confidential Information; or which is trivial or obvious. In addition, Licensee may disclose Confidential Information to the extent it is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that, to the extent permitted by and practical under the circumstances, Licensee provides to Citrix prior notice of the intended disclosure and an opportunity to respond or object to the disclosure or if prior notice is not permitted or practical under the circumstances, prompt notice of such disclosure. In the event of actual or threatened breach of the provisions of this Section, Citrix will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
7. TRADEMARKS AND TRADE NAMES
Licensee is obligated to use the applicable Citrix trademarks and trade names with respect to the Licensed Products in accordance with the requirements and guidelines specified on the “Branding Guidelines” section of the Citrix website. Upon Citrix’s request, Licensee shall submit to Citrix for review complete samples of any advertising, packaging, promotional, or other materials prepared by or for Licensee, which include any Citrix trademarks or trade names. Citrix shall have the right to make reasonable updates to the requirements and guidelines on the Citrix website from time to time. Licensee agrees that, within a reasonable period of time, any advertising, packaging, promotional, or other materials prepared by or for Licensee, will be prepared in accordance with the modified requirements and guidelines. Citrix may in the future decide to modify or replace the applicable Citrix trademarks, and Licensee agrees to transition to using the new or modified marks within a reasonable period of time.
8.1. Defense or settlement of infringement claims. Licensee agrees that Citrix has the right to defend, or at its option to settle, and Citrix agrees, at its own expense to indemnify or at its option to settle, any claim, suit or proceeding brought against Licensee or its Resellers or End Users based on a claim that a Software infringes upon any United States patent or copyright or violates the trade secret rights of any United States party (hereinafter “Infringement Claims”); provided Citrix is notified promptly in writing of an Infringement Claim and has sole control over its defense or settlement, and Licensee and/or its Resellers or End Users provide reasonable assistance in the defense of the same.
8.2. Infringement cures. Following notice of an Infringement Claim, or if Citrix believes such a claim is likely, Citrix shall at its sole expense and option, (i) procure for Licensee the right to continue to market, use and have others use, the alleged infringing Software, (ii) replace or modify the appropriate Software to make it non-infringing, or (iii) if neither option (i) or (ii) is commercially reasonable, accept return of the Software and terminate this Agreement.
8.3. Limitation. Citrix shall have no liability for any infringement claim based on Licensee’s (i) use or distribution of any product after Citrix’s notice that Licensee should cease use or distribution of such product due to an infringement claim, or (ii) modification of the Software other than by Citrix, or iii) combination of Software with non-Citrix programs, data, hardware, or other materials, if such infringement claim would have been avoided by the exclusive use of the unmodified Software alone. For all infringement claims to which this subsection is applicable, Licensee agrees to indemnify and defend Citrix, provided Licensee is notified promptly in writing of an infringement claim and has sole control over its defense or settlement, and Citrix and/or its customers provides reasonable assistance in the defense of the same.
8.4. Entire liability. THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF CITRIX, AND THE EXCLUSIVE REMEDY OF LICENSEE AND ITS RESELLERS AND END USERS, WITH RESPECT TO ANY ALLEGED INTELLECTUAL PROPERTY INFRINGEMENT BY THE SOFTWARE, OR ANY PART THEREOF.
8.5. Other third party claims. Except for Infringement Claims which Citrix is obliged to settle or defend under this Section 8, Licensee agrees to indemnify and hold Citrix harmless against any cost, loss, liability, or expense (including attorneys’ fees) arising out of third party claims against Citrix as a result of Licensee’s, copying, use or distribution of the Licensed Products and Licensee’s exercise of the license rights granted under this Agreement.
9. LIMITATION OF LIABILITY
EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, CITRIX’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT, THE TERMINATION THEREOF, AND/OR LICENSE OF THE SOFTWARE AND DOCUMENTATION HEREUNDER, SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00). CITRIX’S TOTAL LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 SHALL BE LIMITED TO ONE MILLION DOLLARS ($1,000,000). IN NO EVENT SHALL CITRIX BE LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. IN NO EVENT SHALL CITRIX BE LIABLE TO LICENSEE OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT CITRIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. CITRIX’S LIMITATION OF LIABILITY IS CUMULATIVE, WITH ALL CITRIX’S EXPENDITURES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF CLAIMS OR SUITS AGAINST MORE THAN ONE PORTION OF CITRIX PRODUCT LICENSED UNDER THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMIT. IN NO EVENT SHALL ANY LICENSORS OR SUPPLIERS OF CITRIX BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF THIS AGREEMENT.
10. GENERAL PROVISIONS
10.1 Entire agreement; modifications. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussion between them. No modification or amendment to this Agreement shall be effective unless in writing and signed by both parties. The terms and conditions on any Licensee purchase orders or similar documents shall not apply. Any restrictive endorsement on any check or any instrument of payment to Citrix which purports to alter this Agreement or any of the parties’ rights shall be of no force and effect, and the payee party shall be free to negotiate such checks notwithstanding such void endorsement.
10.2 Confidentiality of agreement. The parties agree that the terms and conditions of this Agreement shall be treated as Confidential Information, provided, however, that each party may disclose the terms and conditions of this Agreement: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel of the parties; (iv) in confidence, to accountants, banks, investors and other financing sources and their advisors; (v) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (vi) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction.
10.3 Independent contractors. The relationship between Citrix and Licensee established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed as creating a partnership, joint venture or agency relationship, or as granting a franchise.
10.4 Governing law and jurisdiction. This Agreement shall be construed in accordance with, and governed by the laws of, the Commonwealth of Massachusetts without giving effect to principles of conflict of laws. Each party hereby consents to the exclusive jurisdiction and venue in the state and federal courts located in the Commonwealth of Massachusetts and waives any objections as to venue or inconvenience of the forum. Process may be served on either party by using the notice provisions of subsection 10.5 below.
10.5 Notices. Any notice required or permitted by this Agreement will be in writing and will be sent by prepaid registered or certified mail, return receipt requested, or by overnight courier, charges prepaid, with a confirming fax; to the appropriate address set forth at the beginning of this Agreement, or to such other address for which the relevant party gives appropriate notice. Notice shall be deemed to have been given when delivered or, if delivery is not accomplished by some fault of the addressee, when tendered.
10.6 Force majeure. Nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control of, and not caused by the negligence of, the non performing party.
10.7 Successors and assigns. Neither this Agreement nor any of the rights or obligations of Licensee arising under this Agreement may be assigned or transferred, by operation of law or otherwise, without Citrix’s prior written consent. Any attempted such assignment or transfer shall be void and shall result in the immediate and automatic termination of this Agreement. Subject to this restriction, this Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
10.8 Severability; waiver. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, the remaining provisions will nevertheless remain in full force and effect. Citrix and Licensee agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of this Agreement by the other will not operate or be interpreted as a waiver of any other or subsequent breach. All waivers must be in writing.
10.9 Government End-Users. The Software and accompanying Documentation are “commercial items,” developed exclusively at private expense, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined in the applicable acquisition regulations. If the Software and the Documentation are licensed hereunder for distribution to Government End-Users (in accordance with Section 12.212 of the Federal Acquisition Regulation (48 CFR 12.212 (October 1995)) and Sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (48 CFR 227.7202-1, 227.7202-3 (June 1995)), such Software and Documentation are licensed (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement. If this Agreement fails to meet a Government End-User’s minimum needs or is inconsistent with Federal Procurement law, Licensee agrees to notify Citrix. In the event that, for any reason, Sections 12.212, 227.7202-1 or 227.7202-3 are deemed not applicable, the Government’s right to use, duplicate, or disclose the SOFTWARE are “Restricted Rights” as defined in 48 CFR Section 52.227-19(c)(1) and (2) (June 1987), or DFARS 252.227-7014(a)(14) (June 1995), as applicable. Manufacturer is Citrix Systems, Inc., 851 West Cypress Creek Road, Fort Lauderdale, Florida, 33309.
10.10 Headings. The headings used in this Agreement and the attached Exhibits are intended for convenience only and shall not be deemed to supersede or modify any provisions.
10.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one instrument.
10.12 Language. This Agreement was negotiated and executed in English, and the original language version shall be controlling. All communications and notices to be made or given pursuant to this Agreement shall be in English. Licensee hereby waives any right it may have under applicable law to have this Agreement written in the native language.