Opendwg Alliance Funding Membership Agreement...

OPENDWG ALLIANCE


FOUNDING MEMBERSHIP AGREEMENT
(Amended and Restated)


This Agreement, dated as of the date following the last signature below, is made and entered by and between the OpenDWG Alliance, a Washington nonprofit corporation (the "Alliance"), and the person named at the end of this document (the "Member").


RECITALS


A. The Alliance has been organized and established to promote the DWG drawing file format as an open, industry-standard format for the exchange of CAD drawings.


B. Member desires to become a member of the Alliance, upon the terms and subject to the conditions set forth in this Agreement.


AGREEMENT


Accordingly, the Alliance and Member agree as follows:


SECTION 1. MEMBER'S RIGHTS


1.1 MEMBERSHIP CLASSIFICATION


Subject to the terms and conditions of this Agreement, Member will have, and will be entitled to exercise, all rights of a founding member of the Alliance, as such rights are specified from time to time in the bylaws of the Alliance. Member will furnish to the Alliance such documents (other than confidential, proprietary or trade secret information of the member) and other assurances as the Alliance may reasonably request from time to time to ensure that Member has and continues to meet the qualifications for membership in the founding member class as specified in the articles of incorporation and bylaws of the Alliance.


1.2 USE OF TOOL KIT


1.2.1 LICENSE


Promptly after Member and the Alliance have both signed this Agreement, the Alliance will furnish to Member the OpenDWG Toolkit, consisting of (a) the file format specifications (the "Specification") used by the OpenDWG libraries and (b) the OpenDWG libraries (the "Libraries" and, together with the Specification, the "Toolkit"), and the trademarked Alliance logo (the "Logo"). Subject to the terms and conditions of this Agreement, the Alliance grants to Member a perpetual, worldwide, nonexclusive, royalty-free license to do the following:


(i) use and modify the Specification for the purposes of
developing, modifying or supporting Member's software applications (the
"Member Applications");


(ii) use, modify, edit, port and otherwise create derivative
works of the source code version of the Libraries for the purposes of
developing, modifying or supporting the Member Applications;


(iii) reproduce, distribute (directly or indirectly) and
sublicense the Libraries, in binary form only, as a part of the Member
Applications;


FOUNDING MEMBERSHIP AGREEMENT PAGE 1
(iv) disclose the Specifications and the source code version of
the Libraries to Member's contractors for the limited
purpose of developing Member Applications under contract
with Member; provided, that such disclosure is made
pursuant to a written nondisclosure agreement that
protects the Specifications and Libraries from further
disclosure or use; and


(v) use and reproduce the Logo in connection with Member's
marketing, distribution and licensing of products
containing or derived from the Libraries, subject to those
guidelines and restrictions on use which the Alliance may
adopt from time to time.


1.2.2 LIMITATIONS


Member acknowledges that the Member Applications must have significant value added over the contents of the Toolkit, and that the Toolkit is not intended to be distributed on a stand-alone basis or as a part of a software development kit or comparable product that is substantially similar to the Toolkit. The Toolkit is owned by the Alliance and its suppliers. The Alliance reserves all rights in the Toolkit other than those expressly granted in Section 1.2.1. Without limiting the generality of the foregoing, except as specifically permitted under Section 1.2.1(iv), Member will not (a) distribute or sublicense any copy of the Specifications or (b) distribute or sublicense any copy of the Libraries in source code form. In addition, Member will not export or reexport the Toolkit in violation of any law, regulation, order or other governmental requirement (including, without limitation, the U.S. Export Administration Act, regulations of the Department of Commerce and other export controls of the U.S.).


1.2.3 UPDATES


From time to time, the Alliance may furnish updates or enhancements to the Toolkit. All such updates or enhancements will be treated as part of the Specifications and the Libraries (as the case may be) and will be subject to the terms of this Agreement upon delivery to Member.


1.3 NOTICES


Member will include in any Member Applications all notices as contained or specified in the Toolkit.


1.4 WARRANTY DISCLAIMER; LIMITATION OF LIABILITY


The Toolkit is provided to Member "AS IS" AND WITH ALL DEFECTS AND ERRORS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE ALLIANCE HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTY ARISING FROM ANY COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE, IMPLIED WARRANTY OF NONINFRINGEMENT OR IMPLIED WARRANTY OF QUIET ENJOYMENT. THE ALLIANCE IS NOT LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR OTHER SIMILAR DAMAGES ARISING FROM BREACH OF THIS AGREEMENT OR OF ANY WARRANTY CONTAINED HEREIN, WHETHER ARISING IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, EQUITY OR OTHERWISE, EVEN IF THE ALLIANCE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.


1.5 WEB LINKS


Upon Member's request, the Alliance will link Alliance's world wide web site (the "Alliance Web Site") to one page of one of Member's world wide web sites (the "Member Web Site"). Member will provide to the Alliance color artwork of Member's name and/or logo in the form and on the media specified by the Alliance to be included in the Alliance Web Site to denote the link to the Member Web Site. Provided that the Alliance complies with Member's instructions as to the inclusion of copyright, trademark and other


FOUNDING MEMBERSHIP AGREEMENT PAGE 2 proprietary notices and complies with any request of Member to remove Member's name, logo or link from the Alliance Web Site, Member hereby releases and discharges the Alliance, and its agents and contractors, from any damages or liability to Member arising out of the placement of Member's name and/or logo in the Alliance Web Site or the failure to do the same, and from any other liability arising out or related to the link between the Alliance Web Site and the Member Web Site.


SECTION 2. MEMBER'S COVENANTS AND OBLIGATIONS


2.1 BYLAWS, RULES AND POLICIES


Member will perform its obligations as a member of the ...