User Group Software Distribution Agreement
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RETURN TWO SIGNED ORIGINALS USER GROUP SOFTWARE DISTRIBUTION AGREEMENT APPLE COMPUTER, INC. Software Licensing Department 2420 Ridgepoint Drive MS 198 SWL Austin, TX 78754 Fax Number: (512) 919-2120 E-Mail Address: [email protected] IF COMPLETING THE BLANKS BY HAND, PLEASE PRINT LEGIBLY Distributor _________________________________________________________________ (User Group Name) Represented By______________________________________________________________ (Name of Officer and Title) Street Address_______________________________________________________________ (User Group’s Street Address) City_______________________State______Zip Code____________Country ________ Phone Number __________________________ Fax Number________________________ E-Mail Address: _ This Agreement is entered into between Apple Computer, Inc. ("Apple") and the "Distributor" listed above. In consideration of the rights and obligations set forth in this Agreement, Apple and Distributor agree that the following terms and conditions shall govern Distributor’s use and distribution of the Apple Software. 1. Definitions. 1.1 "Apple Intellectual Property" means Apple's copyrights, trade secrets, and patents in the Apple Software, and does not include any other patents or intellectual property rights. 1.2 "Apple Software" means, collectively, the object code versions of any item which is: (a) listed in Exhibit A, as amended from time to time in accordance with this Agreement; and (b) Currently Posted on the Internet on: SWL146-020800 Page 1 (i) the ftp.info.apple.com and available in the Macintosh directory reached via the following path: Apple.Support.Area/Apple.Software.Updates/US/Macintosh/ or (ii) http://download.info.apple.com/Apple_Support_Area/Apple_Software_Updates/ Although the Mac OS Software updates are posted at the above websites, none of them are available for distribution under this Agreement. 1.3 "Currently Posted" means that the Apple Software must be posted at the address above at the time of distribution by Distributor. 1.4 "Distributor's Site" means any of the following: a. Distributor page/URL on the World Wide Web b. Distributor's FTP site c. Distributor's online service Indicate in the spaces below the following information: ___________________________________________________________________________ Distributor/User Group Website or FTP Address ___________________________________________________________________________ Name and phone number of the Site’s administrator 1.5 "Members" mean currently registered members of the Apple Users Group organized by Distributor who at the time of receipt of any Apple Software distributed by Distributor are in satisfaction of all the prerequisites established by Distributor for regular, active membership in the Apple User's Group. 2. Licenses. 2.1 Subject to the terms and conditions and Special Terms of this Agreement, Apple hereby grants to Distributor and Distributor hereby accepts, a nonexclusive, nontransferable, limited license under Apple Intellectual Property (as defined in Section 1.1) to reproduce and distribute, only to its Members, the object code version of the Apple Software. 2.2 Apple may from time to time, at its sole discretion, add or delete Apple Software which Distributor is authorized to distribute. (a) Notice, provided to Distributor in compliance with Paragraph 12, shall be deemed to have amended Exhibit A upon Distributor’s receipt of such notice. (b) If termination of distribution of any particular Apple Software is required by Apple, Distributor agrees it will, no later than thirty (30) days from the date of notice as specified in Paragraphs 2.2 (a) above, cease distribution of such Apple Software. SWL146-020800 Page 2 2.3 The grant of this license is expressly conditioned upon Distributor's compliance with each of the following terms: (a) For distribution of the Apple Software by diskette or CD, Distributor will, before distributing Apple Software to a Member, distribute to such Member a copy of the Apple Computer, Inc. Software License attached as Exhibit B, as may be modified by Apple from time to time. (b) For electronic distribution of the Apple Software, Distributor shall ensure that each Member is presented with an initial instructional display on the Member's terminal screen (the "Initial Display") every time the Member accesses any directory, folder or area containing any part of the Apple Software and before the Member may view or download any Apple Software through the Distributor's Site. Distributor shall be deemed to have fulfilled the Initial Display requirement if the Apple Software distributed by Distributor utilizes Apple's installer technology, which requires the Member to acknowledge Apple's End User license agreement prior to installation. The Initial Display shall contain the following elements: (i) A copyright notice reading "All Software Copyright © [year] Apple Computer, Inc. unless otherwise noted; All Rights Reserved." (ii) A proprietary rights notice reading "SOFTWARE MAY BE USED ONLY UPON CONDITIONS STATED IN THE APPLE LICENSE CONTAINED IN FILE ‘APPLE.LIC’. YOU MUST GO TO THAT FILE AND READ THE LICENSE AGREEMENT. BY DOWNLOADING AND/OR INSTALLING THE SOFTWARE YOU ARE AGREEING TO THE TERMS OF THE APPLE LICENSE. DO NOT DOWNLOAD IF YOU DO NOT AGREE WITH THE TERMS. (c) Distributor’s site must require Members to install the Apple Software in the same media format in which the Distributor acquired such software. Members must be required to click on the acceptance button in the end-user software license agreement which appears upon installation before they may access the Apple Software. If the Apple Software, which Distributor acquired from Apple, is not accompanied by a license, Licensee must distribute such software with the Apple Software License attached hereto as Exhibit B. Whenever technically feasible, the Apple Software License must be presented on the screen, and the Member must verify that it has read and agreed to the terms of said license before the Member can view or download the Apple Software; if not technically feasible, then the Apple Software License must be displayed as the first file of the directory, at the same level as the Apple Software. (d) Distributor will provide Apple (Software Licensing) with access to Distributor's Site and any software necessary to access Distributor's Site for the term of this Agreement at no charge to Apple. (e) Distributor shall not remove or obliterate any proprietary rights notices contained within any of the Apple Software and shall ensure that each copy of the Apple Software distributed to its Members contains such notices. SWL146-020800 Page 3 (f) Distributor may not export or reexport the Apple Software except as authorized by United States law and the laws of the jurisdiction in which the Apple Software was obtained. In particular, but without limitation, the Apple Software may not be exported or reexported (i) into (or to a national or resident of) any other U. S. embargoed country or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. Distributor shall not knowingly provide the Apple Software to a Member located in, under control of, or a national or resident of any such country or on any such list. 2.4 Distributor agrees that this license gives no title or rights of ownership in the Apple Software and acknowledges that all rights of ownership in the Apple Software remain in Apple or in third parties from whom Apple has acquired license rights. 2.5 Distributor is expressly prohibited from: (a) distributing Apple Software, directly or indirectly, to anyone other than its Members; (b) distributing Apple Software for profit ("For Profit" means a price that exceeds by more than a nominal amount the cost of media, duplication and handling. Apple reserves the right to determine on an individual basis what is a nominal amount for the purpose of this definition); (c) sublicensing third parties to distribute or copy Apple Software; (d) modifying any Apple Software or incorporating it into other software or hardware products, or sublicensing any third party to do the same, except as granted in this Agreement. 3. Effective Date; Term. The Effective Date of this Agreement shall be the date of Apple's execution. The Agreement will remain in effect unless otherwise terminated pursuant to Paragraph 4 below. 4. Breach and Termination. 4.1 Apple may terminate this Agreement for its convenience at any time by giving Distributor written notice of termination. Termination will become effective upon Distributor's receipt of such notice. 4.2 If Distributor breaches any provision of this Agreement, Apple may immediately terminate this Agreement by written notice to Distributor, whereupon this Agreement and all rights granted to Distributor hereunder shall immediately cease. Waiver by Apple of any breach by Distributor shall not be deemed to be a waiver of any other or subsequent breach. The rights of Apple under this Paragraph 4 are in addition to any other rights and remedies provided by law or under this Agreement. Upon termination of this Agreement, Distributor will cease all use of the Apple Software and will destroy all copies thereof, and within thirty (30) days of such termination, an authorized officer of Distributor will notify Apple in writing that the copies have been destroyed. Members who obtained software from the Distributor prior to Distributor's termination may continue to use this software. SWL146-020800